Last updated on 2015.02.25
Senator Corey Brown wants to have a fight over initiative and referendum signature counts. Seeing that the people and press were outraged by his democracy-hating Senate Bill 166, the Senator from Gettysburg asked that his bill be tabled, but not before issuing a legal threat to future petitioners:
...as you saw by our agenda today, we have many bigger fish to fry and there are a lot of things that we have to discuss and maybe ultimately we just need to let the courts deal with this... [Senator Corey Brown, remarks on Senate Bill 166, Senate State Affairs Committee, 2015.02.06].
You want to go to court, Corey? Fine. As one non-licensed legal scholar to another, let's rumble.
In his remarks yesterday, Senator Brown claimed that, in setting the threshold for petition signatures needed to place initiatives and referenda on the ballot, South Dakota law has adopted a definition of "qualified electors" that is "kind of contrary to what the constitution indicates." Citing the 1994 Poppen v. Walker ruling that briefly overturned video lottery, Senator Brown contends that only the Supreme Court, not the Legislature, may define terms in the state constitution.
Let's look at the relevant texts:
South Dakota Constitution, Article 3, Section 1, clause setting petition signature requirements:
Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.
SD Const., Article 7, Section 2, on voter qualifications:
Every United States citizen eighteen years of age or older who has met all residency and registration requirements shall be entitled to vote in all elections and upon all questions submitted to the voters of the state unless disqualified by law for mental incompetence or the conviction of a felony. The Legislature may by law establish reasonable requirements to insure the integrity of the vote.
Each elector who qualified to vote within a precinct shall be entitled to vote in that precinct until he establishes another voting residence. An elector shall never lose his residency for voting solely by reason of his absence from the state."
SDCL 2-1-5, establishing the practical basis for signature requirements:
The total number of votes cast for Governor at the last preceding gubernatorial election, shall for the purposes of this chapter, be the basis for determining the number of petitioners required.
Senator Brown's proposed replacement language in SB 166:
For purposes of this chapter, qualified electors shall mean the total registered voters eligible to cast a ballot for Governor in the preceding gubernatorial election as determined by the secretary of state.
Const. 3-1 says initiative and referendum petition signature requirements shall not be more than 5% of "qualified electors." Const. 7-2 defines qualified electors. SDCL 2-1-5 doesn't mention "qualified electors." It sets a perfectly constitutional threshold for available signatories that will always be less than or equal to the threshold set in Const. 3-1.
If Senator Brown thinks current law somehow legislatively co-opts the Supreme Court's authority to define constitutional terms, his own proposed language violates that standard more blatantly. His SB 166 says "qualified elector." Brown writes a new definition not found in the state constitution. Brown, a legislator, is defining a constitutional term, which Brown is telling us the Supreme Court says he cannot do. Brown's bill is thus unconstitutional.
Brown's bill further violates the constitutional signature threshold by math. Const. 3-1 refers to "Not more than five percent of the qualified electors of the state...." It does not say the number of qualified electors yesterday or three months ago or three years ago. Taken by itself, that provision means qualified electors in existence, right now. Senator Brown is trying to qualify that constitutional definition with an arbitrary and fixed date.
Consider that, by the Secretary of State's count, there were 519,361 registered voters ("qualified electors") available for the 2010 gubernatorial election. By July 1, 2012, around when our referendum petitions on Governor Dennis Daugaard's HB 1234 education reform were due, the number of registered voters had dropped to 512,799. Had SB 166 been in effect then, petitioneers would have had to collect 25,969 signatures, which would have been 329 more voters than 5% of the qualified electors in existence in South Dakota at that time.
That, Senator Brown, would have been a stone-cold violation of the state constitution. I'd have taken your bill to court, and you would have lost.
I look forward to circulating initiative petitions this spring and summer here in Aberdeen. I may volunteer to walk around Gettysburg to get all of Senator Brown's neighbors' signatures on the good legislation citizens will propose. And I relish the opportunity to see whatever court challenge Senator Brown is threatening us with go down in flames as democracy marches on over his stilted legal arguments.