A Sioux Falls resident votes in the 2024 general election on Nov. 5 at Gloria Dei Lutheran Church. (Makenzie Huber/South Dakota Searchlight)
A new law review article argues that South Dakota Republican legislators have spent the past eight years systematically weakening the public’s ability to enact laws through ballot questions, a right enshrined in the state constitution since 1898.
“Republican supermajorities in Pierre have repeatedly proposed and passed legislation making it harder for citizen ballot committees to do their work,” the authors wrote.
The article, published in the South Dakota Law Review, was written by Democratic activist Cory Heidelberger, University of South Dakota law school student Teagan McNary, and Augustana University professor and Democratic former state Sen. Reynold Nesiba.
The authors identified 33 legislative actions passed from 2017 through 2024 that altered the way citizens may draft, submit or campaign for ballot questions. The authors argue that 14 of those laws pose serious obstacles to direct democracy and were crafted by Republican legislators who are hostile to citizen-led change.
The authors also analyzed recent court rulings that have blocked or overturned several of the laws, citing constitutional violations. Still, they conclude that the overall effect of the legislative push has been to “chill participation in direct democracy.”
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Multiple Republicans in leadership positions declined to comment about the article, but Republican Lt. Gov. Tony Venhuizen said he enjoyed reading it.
“Although it really reads as an advocacy piece from authors with a particular perspective,” he said, “I thought the entire law review issue was good and offered a number of perspectives on different aspects of the legislative process.”
Other articles in the special legislative issue include a look back on the state’s last 100 legislative sessions co-authored by Venhuizen, an assessment of government transparency, and an analysis of how state constitutions impact tribal relations, among other topics.
A legacy under pressure
South Dakota was the first state in the nation to adopt the initiative and referendum process 127 years ago, a legacy of the populist and progressive movements that sought to reduce corporate influence over state governments, the authors explain. An initiative puts a proposed law on the ballot, and a referendum sends a legislatively adopted law to the ballot for voters’ approval or rejection. Both require thousands of petition signatures from registered voters to earn a place on the ballot.
Citizen-backed ballot questions have been used in South Dakota to raise the minimum wage (2014), cap “payday lending” at 36% interest (2016), legalize medical marijuana (2020) and expand Medicaid eligibility (2022). All that recent history, the authors argue, has triggered a backlash from Republican lawmakers in Pierre.
Republican SD lawmakers pursue a multifaceted crackdown on citizen-backed ballot measures
The article outlines a series of legislative changes in South Dakota that, according to authors, have made it harder for citizens to pass laws through the ballot initiative process. A 2017 law delayed implementing voter-approved measures until the following July, giving lawmakers more time to amend or repeal them. In 2018, the Legislature passed a law requiring initiatives be about one subject, which opponents argue makes it easier to challenge them in court. Last year, a new law allowed voters to withdraw their signatures from petitions.
Additional bills were passed during this year’s legislative session. One moved the deadline for filing ballot measure petition signatures from May up to February, shortening the time available for signature collection. That law is being challenged in court. Lawmakers also sent their own ballot question to voters next year that will ask them to raise the approval threshold for constitutional amendment ballot questions from a simple majority to 60% of votes cast.
The authors close the article with several recommendations, including increasing staffing at the Legislative Research Council to improve ballot measure processing, and repealing laws that burden circulators or discourage volunteerism.
“Opponents of initiative and referendum (most of them legislators who rightly perceive direct democracy as a check on their power) like to cry ‘We’re a Republic, not a Democracy!’ But we are and can be both,” the authors wrote.
