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Brown Threatens to Sue Petitioners, Can’t Win Constitutional Argument with Own Bill

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: 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.


  1. Roger Elgersma 2015.02.07

    Courts can do anything they please without checks and balances.
    When we had a perfectly good bill to keep cars three feet from bicycles and that law works well in 25 states and also in Sioux Falls, a lawyer gave nonsense excuses against it and the legislature tabled it. Everyone else involved was for it.
    When the voters passed a referendum to stop corporate farming the then Attorney General Barnett never enforced it, defended it so poorly that the supreme court threw it out, then ran for governor saying that he had defended it, then gets appointed judge, we have no advantage to make a law that the people want with the referendum. Sometimes they last, but some want to undermine the minimum wage as well. At least Kristi says in Congress that the people should vote on it like they did in South Dakota. Maybe she just does not want a chance to vote against it in Washington. But when the courts came to the legislature and said do not make shared parenting laws, for years the legislature did nothing. Now the lawyers came up with a shared parenting law(eighty percent of the voters are for shared parenting) that makes no precident that it will ever happen. It just says that the court will consider shared parenting but no reason that they will ever have to legally do so. The three branches of government do nothing for checks and balances if the lawyers rule the legislature.

  2. Tim 2015.02.07

    Reading comprehension has never been a Republican lawmakers strong suit, he's just pissed because the people of the state called him out, my kids used to throw temper tantrums when they didn't get their way too.

  3. Donald Pay 2015.02.07

    What is wrong with this guy? Why can't Sen. Brown's minders, whoever they are, just do what a normal South Dakotan would? When legislators turn down what they think is key legislation, they have the option to initiate it? Why doesn't Sen. Brown just tell those folks to use the initiative to seek a higher signature requirement?

    He and I know why he doesn't do that. His special interest minders want this done quick and dirty, which is why they wanted the emergency clause. They don't want to have to crawl out of the feces pile they live in to go out and face the public, let alone collect signatures from the folks they want to disenfranchise. They know they would lose.

  4. larry kurtz 2015.02.07

    Brown's ego has been pumped by the SDGOP establishment so now he believes he is the second coming of Bill Janklow: nothing a live boy or dead girl won't fix.

  5. Steve Hickey 2015.02.07

    As the co-chair of a 2016 initiated measure ballot committee (36% rate cap for predatory lenders) the message this sends me is the new required number for signatures is now nearly double. A ballot committee that produces any less in the future is foolish and can expect to have it challenged and risk a Court kicking them off the ballot. The bill was tabled but the effect is the same as if it had passed.

  6. Rorschach 2015.02.07

    Wrong, Steve Hickey. Lee Schoenbeck - actual attorney - wrote on the War College that Brown wouldn't have a case, if he brought a case. Schoenbeck is right. Still it's good to collect as many extra signatures as possible though nobody ought to feel compelled to collect twice as many as needed.

  7. Rorschach 2015.02.07

    And I say let Corey Brown bring a lawsuit. I'm calling his bluff. If he fails to bring a lawsuit next time the Democrats bring a ballot initiative or referendum it proves he knows what the legislative lawyers are telling him. There is no merit to the constitutional argument he's trying to sell in order to save face. And I dare him to bring his bill off the table. I dare him.

  8. Tim 2015.02.07

    Rep Hickey, I feel I owe you an apology, I have always tossed you onto that stink pile known as the state Republican party. I have seen over the last several weeks I have made a mistake, I still reserve the right to disagree with you often but will no longer toss you on that pile just because you have an "R" behind your name.

  9. larry kurtz 2015.02.07

    Brown's antics are pretense scripted to present the illusion of lawmaking in the absence of leadership on ethics reform: a tempest in a pee pot, really.

  10. Tim 2015.02.07

    larry, can you have ethics reform if you have no ethics to begin with?

  11. larry kurtz 2015.02.07

    Wildfires in February couldn't drag me away from watching the train wreck that is South Dakota, Tim; but, posole roja sure as hell can.

  12. Tim 2015.02.07

    larry, my wife is coming around to selling the house and getting the hell out of here, how's the winter in NM? If we are moving it will be to someplace warm. We could drink beer and watch the train wreck together from our front yards. ;-)

  13. Using Batgirl this week 2015.02.07

    How about using Brown's bill as a hog-house vehicle to place a Constitutional Amentment on the 2016 general election ballot which defines petition signatures as described in Section 1 of 2-1-5 "total number of votes cast for Governor"? If Brown's real intent is to clarify what he believes to be a conflict, any conflict would be then resolved with specific language. Republicans placed the "secret ballot" Constitutional Amendment on the 2010 General Election ballot as a taunt to organized labor and the National Labor Relations Board, at the insistence of then Senator Dave Knutson in an effort to save his losing campaign for Governor. Voters amended the Constitution at the ballot box in 2010, they could be offered the opportunity to do it again.
    It would also force the opponents of the Section 1 language to actively and openly campaign, rather than using threats of a lawsuit as a weapon.

  14. caheidelberger Post author | 2015.02.07

    UBTW, I don't think we can hoghouse a straight Senate bill into a constitutional amendment proposal. I think amendments have to go on the ballot via joint resolution.

  15. caheidelberger Post author | 2015.02.07

    R: Schoenbeck agrees with me? Brown's head must be spinning.

  16. Using Batgirl this week 2015.02.07

    The sponsor can ask to suspend the rules and the body can agree to a late filing.

  17. Tim 2015.02.07

    The sponsor can ask to suspend the rules? What's the sense in having rules if they just ask to suspend them?

  18. Tim 2015.02.07

    Wish I could ask my employer to suspend a few rules.

  19. grudznick 2015.02.07

    I bet Mr. Brown's minder is Mrs. Brown. People who call and swear at kids should be slapped like that guy at the hockey game was.

  20. Tim 2015.02.07

    grudz, the guy at the hockey game hasn't been slapped yet, hell, we don't even know who it was.

  21. Donald Pay 2015.02.07

    I don't think the threat of a frivolous SLAPP (Selective Lawsuit Against Public Participation) should make any difference in the number of signatures collected by a ballot question committee. Threats like Brown's have been routine, and courts won't invalidate a petition drive that meets the statutory requirement. In previous suits, the courts have always accepted the statutory signature total as the benchmark, and have accepted other statutory language that interprets various aspects of Article III, Section 1.

    Hey, let's make lemonade. Brown's tabled bill could be turned into a bill to prevent the intimidation and harassment of initiative or referendum petition circulators and signers.

  22. Mike B 2015.02.07

    Maybe legislators should worry about the BUDGET instead of seeing how many bills they can introduce.

    On that shared parenting thing: unless both parents are willing to agree, it doesn't happen. This is a very personal issue for me.

  23. Tim 2015.02.07

    They do seem to be worried about a lot of nothing while not focusing on some of the more important things. To busy discriminating against people, restricting our rights as citizens and telling people how to raise their kids to be worried about that other stuff.

  24. Tim 2015.02.07

    Oh yeah, almost forgot, and giving themselves a raise.

  25. Jana 2015.02.07

    I watched the Sioux Falls cracker barrels online and the focus was on how Brown was a great guy and that people were rude to the interns that answered the phones.

    I didn't hear anyone while I was listening talk about how the will of the people should matter.

    Unfortunately, the format allows for questions and no follow up.

    Sorry Sioux Falls, but the moderators have been reduced to sycophants who edit the questions and then do not offer any follow up.

    The legislators know this and use it as a practive session for talking points.

    What I did take away is that voters aren't informed enough and that they shouldn't question legislators.

    Not once did I get the feeling that they were there to serve the people but were there to defend, without question, their own belief structure of what we should all think...if we were as smart as they are.

    It was also evident that some of the GOP reps there were far more interested in representing the dogma of the far right than they were of anyone in South Dakota.

    I'm also guessing that there was a sale on "empty suits" that they took advantage of in the past month.

  26. Tim 2015.02.07

    Jana, the people of this state keep re-electing them, maybe they aren't informed enough. Or it could be that the legislators are so overconfident they don't feel the need to care what the voters think. Only one thing will fix that.

  27. Jana 2015.02.07

    I also noticed that more than a few were taking their direction from Far Right interests and doing their best to impose them on SD.

    When the subject of Common Core came up, not one of them had the courage to challenge Rounds or Daugaard by name and instead talk about local control. Funny thing was they wanted SD to set their own standards on other issues and not be like other states and in the same discussion pull what other states are doing and push that we adopt those standards.

    The current format of the day is worthless and nothing more than a commercial for those in power to posture their own dogma.

    Put the media and genuine bloggers in charge of these forums and let's actually make the legislature listen to the voice of the people and be accountable for their actions.

    (sorry PP but using your name and genuine in the same sentence is an oxymoron...or do you and your friends still spell it Moran*)

    * This might be a picture of Pat at a political event. Proud to be ignorant!

  28. Jana 2015.02.07

    Tim, the fact that there is not an objective media watchdog moderating these empty sessions and that there is no risk of anyone questioning the truth of their statements is sad and should be an embarrassment to the legislators and media alike.

  29. Tim 2015.02.07

    "the fact that there is not an objective media watchdog moderating these empty sessions and that there is no risk of anyone questioning the truth of their statements is sad and should be an embarrassment to the legislators and media alike."

    I couldn't agree more, just not sure how big of a club you would have to hit the media with to get their attention. The only thing that will get the legislators attention is a voter revolt, sadly, I don't see that happening here, voters just don't seem to care.

  30. Jana 2015.02.07

    Voters won't get engaged unless they know about it and the GOP likes them uninformed and their check books open to bumper sticker slogans.

  31. Sam @ 2015.02.07

    Is this Brown guy sane or does be need to be sent to Yankton for evaulation?

  32. Tim 2015.02.07

    This is what we get with corporate journalism, good thing people like Cory are doing the media's job for them. Problem is, this requires people to get off the couch and walk to the computer and do some research, most people won't do it. The info is out there if voters would take the time to look.

  33. grudznick 2015.02.07

    He seems saner than most. Definitely saner than Most.

  34. Jana 2015.02.07

    I'll give the Argus credit for live streaming the sessions, but two thumbs down for not live tweeting or providing followup questions.

    They are complicate in the voter lack of information.

  35. Jana 2015.02.07

    KELO, KSFY and KDLT...not to mention SDPB should be at least taping these and rerunning them.

    The fact that the legislators can just use these forums as a talking point should make them feel cheap and well...just not living up to their mission of journalism.

  36. larry kurtz 2015.02.07

    grud cruising brown hardly surprising but those two really should get a rheum.

  37. larry kurtz 2015.02.07

    tim: be sure to turn the lights out, k?

  38. Tim 2015.02.07

    Lol, larry, the lights have been out for a long time.

  39. mike from iowa 2015.02.07

    Jana-did you mean complicit?

  40. jerry 2015.02.07

    Until ag products and cattle prices drop, republicans rule. The reason there was a two party system in South Dakota in the past was that there was an even sense of ownership. Neighbors looked out for neighbors because we were all in the same boat. That ship has sailed and as long as there are capital gains, we will continue to be a corrupted red state. Brown just wants to protect his fiefdom. Like the rest of the rural yokels.

  41. leslie 2015.02.07

    where did brown get the 94 case, from marty?? boy the sdgop prolly did NOT like that opinion! they been sittin on it all this time :O

    this thread illustrates how koch and ALEC lawyers ect are COMBING south dakota statues, const., ect searching for loopholes; here they found "the legislature may reasonably regulate I/R" and the incongruity of "elector" and "voter".

    hickey-where did you get that idea??

    dons' & batgirls' ideas might be worth thinkin thru

    kurtz-u funy "wildfire", and "trainwrecks", but mah spanglis is ah no so guud.

  42. Jana 2015.02.07

    Tim...You're right, I did mean complicit...damn spell check.

  43. Donald Pay 2015.02.07

    Hey, I said it before. The Legislature is a nuthouse, and the people have to be the wardens. It used to be they would have a 5 minute speech by a legislator or two, then take questions. I'm not sure if that's still the format, but I looked at crackerbarrels as a place where you could put information in front of a lot of folks, and do some mini-organizing/lobbying. I'd pass out handouts on an issue or two. Some people would start asking questions off my handout, or go up afterwards and press the issue directly. Or you might go in with few folks and sit in different sections of the room. Each individual might not be able to ask follow ups, but someone else can follow up.

  44. tara volesky 2015.02.07

    The Democrats should be doing news releases with every newspaper and radio station in SD. They have been pretty meek out there. Nobody wants to rock the boat. To bad. When you remain silent, you are part of the problem.

  45. leslie 2015.02.08

    not a bad idea, tara. oh, Ann Tornberg...where are you? (and please update that website!!)

  46. Tim 2015.02.08

    leslie, Tornberg is where a lot of us were afraid she'd be, sitting in the corner keeping her mouth shut not rocking the boat. A fine choice to run the SDDP. I agree with Tara, dems should be beating repubs over the head with what has transpired so far, instead we get, Zzzzzzzzzz.

  47. Bill Dithmer 2015.02.08

    It's the bottom of the seventh inning, nobody out, Heidelberger finishes his practice swing and settles into the batters box. This is the second time today he is facing Brown who came in to relieve starter Dennis Daugaard in the fourth.

    These two have a history even before today but its only gotten worse. In the fourth Brown had Heidelberger down 0 and two and spent a pitch going high and hard inside just missing the batters head. Words were exchanged, Brown yelled "good luck" or something like that. Heidelberger couldnt check his swing on the next pitch and came around for strike three retiring the sides.

    Brown is really working the ball today. His control is good as long as he doesnt let his temper get away from him, thats always been easier said then done. Here's the pitch, swung on and foul tipped down the third base line.

    Heidelberger steps out of the box and turns to look for the sign. Hes back in there now and looks to be ready. Heres the pitch, and Heidelberger just stands there and watches it pass, strike two.

    It's 0 and two again folks with nobody out. Brown is set, shakes off one sign, then another one. Now he sees one he likes and delivers high and hard again. Heidelberger takes it on his shoulder and starts walking towards the mound with his bat still in his hand. Both dugouts have emptied but none of the players are headed for the action, their going to the consession stand led by GM Tornberg. She was heard to say that the outcome could have been different but the boys in blue couldnt seem to concentrate on the game. Commissioner Jackley had decided that the Redmen should be given a ten run lead before the game started, and that slowed things down some.

    The Demacratic party in SD has two broke arms, they cant even wipe themselves when they go potty. Their just assuming the posistion and hoping for the best.

    Kurtz is right, train wrecks are better seen from afar.

    The Blindman

  48. larry kurtz 2015.02.08

    Bill, Pierre is a train wreck spilling toxins and sludge into every corner of South Dakota.

    Democrats: urge the leadership to end the primary season then nominate candidates and draft initiatives at convention.

  49. caheidelberger Post author | 2015.02.08

    Good point, Donald! As long as voters follow statute as it stands, no judge will punish them or throw out their efforts. If Brown wants us to gather 26,000 signatures instead of 14,000, he's going to have to have the guts to defend his bill on its merits, not with his constitutional smokescreen, and not with the completely irrelevant distraction about mean calls to pages.

    By the way, at yesterday's crackerbarrell, Brown's Republican colleague Brock Greenfield said he declined to sign onto SB 166 because he could see Brown was stirring a hornet's nest. Note the cowardice there, not speaking to the issue, simply being afraid to take the heat.

  50. caheidelberger Post author | 2015.02.08

    Jana, I heard that same BS up north at the Aberdeen crackerbarrel. Brown and his backers want to talk about anything other than the facts of SB 166: it's a bad bill that seeks to take power away from the people.

  51. caheidelberger Post author | 2015.02.08

    Jana, on public forum format: Now that Ken Santema and I are neighbors, he and I may need to get together to host some blog forums. We would balance each other nicely.

  52. Tim 2015.02.08

    larry, I am coming around to your way of thinking, it is becoming apparent that SD may be a lost cause. To many decades of Republican control to recover from.

  53. tara volesky 2015.02.08

    That's a great idea Cory. You guys should also do a political webcast like 100 Eyes. Your first interview could be Cory Brown.

  54. larry kurtz 2015.02.08

    Tim, it's as if the wagons are too few or too broken to circle.

  55. larry kurtz 2015.02.08

    Bob Ewing is vulnerable in District 3: maybe some pissed off intrepid Democrat will oppose him next cycle.

  56. larry kurtz 2015.02.08

    District 31, rather.

  57. Tim 2015.02.08

    I could be considered a "pissed off intrepid Democrat", problem is, I don't live in 31, I'm in 34. lol

  58. Tim 2015.02.08

    Ewing is an idiot, but so is Gosch, they keep re-electing them.

  59. Reynold Nesiba 2015.02.08

    I do think Brown was threatening to sue. And I also think he will lose. That said, anyone bringing a ballot measure that reins in powerful people, like payday lenders, is going to get sued as Steve suggests.

    To Ann Tornberg's credit, let's remember she is simply the party chair. The party is operating without an executive director. That is the person who would be filing press releases and speaking out about such things. Hopefully they will get someone hired soon. Why can't the party hire Cory to at least be the media attack dog? The only thing that would make this blog better is if it were on KELO, the ArgusLeader, and every other SD media outlet every day.

  60. caheidelberger Post author | 2015.02.08

    Reynold, you're right about the threat of lawsuits on the payday lending initiative. Hickey and Hildebrand are threatening a business worth billions. The payday lenders will surely find it worth spending a few million on lawyers to throw every obstacle they can in the way of an initiative that threatens their profits. That just means the petition organizers and circulators have to make sure they do everything according to Hoyle... and don't hire Annette Bosworth to circulate petitions.

    And Reynold, the party can't hire me because I didn't apply! But I welcome tips from all interested readers. We're making our last move tomorrow, and then we're in Aberdeen for the duration, so I'll have plenty of time to blog during the last month of the session. Wa-hoo!

  61. tara volesky 2015.02.08

    The Democrats are dead unless they get a real professional spokesman.

  62. barry freed 2015.02.09

    If Cory doesn't agree with your opinion, it doesn't get posted.

  63. Les 2015.02.09

    Browns actions sound like the brothers in Wyoming with house bill 232.

  64. mike from iowa 2015.02.09

    Bill D-I looked through the Grammy winners today and didn't see your name. What gives? You should have gotten one in the "Just Because" category.

  65. Owen reitzel 2015.02.09

    You new here Barry?

  66. leslie 2015.02.09

    political jobs in rapid city are like gifts to sdgop. how about a contesting mayoral candidate to the former acerbic police chief (like him as i do). kookier v. frcpc is really not that big of deal (i prolly dont know what i am talking about).

  67. Bill Dithmer 2015.02.11

    MFI, its because of my give a shit attatude. Or maybe its my inability to string a cohesive thought together good enough to give the general public a grasp of my insanity.

    No that cant be it.

    Maybe, its because I'm a little rough around the sdges, and have been known to rub people the wrong way. I dont color within the lines, i used to say it was because I'm blind but now I know its because I'm obstinate.

    Thats bullshit because I'm a teddy bear, just ask me damn it.

    But it might be that I dont kiss ass, and you would have to in that industry. Im also opinionated and predisposed to being argumentative. They couldn't have someone like that around.

    Yes, I believe we'll go with that last one.

    One last thing here. I could never work for someone else. And to tell the truth, I cant believe that I'm still allowing myself to work for me. I should have been let go a year ago.

    The Blindman

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