Direct Democracy Imperiled: Analyzing Attacks on the Initiative in South Dakota
The front entrance of the South Dakota State Legislature. Photo courtesy of Runner1928.
In recent years, one mechanism for effectuating popular legislative change has garnered much attention—ballot initiatives. Also known as citizen initiatives, ballot initiatives refer to a process that allows citizens to propose statutes and/or constitutional amendments directly to the public, effectively bypassing the state legislature.
Generally, any private citizen can submit the text of the initiative, which often takes the form of a bill, to the voters in order to collect signatures. If enough signatures are collected, the initiative will be placed on the next general election ballot. If it receives a majority of the vote, the initiative becomes law. Currently, 24 states allow for an initiative process in some capacity. In essence, initiatives place the power of legislative action directly in the hands of the people, allowing legislation to closely match the broader public sentiment. This is a particularly potent tool when a state legislature is opposed to popular policy or rendered inefficacious due to gridlock. However, as the initiative has increasingly been used to enact liberal policies, attempts to dilute its power have become more numerous.
In particular, South Dakota has become a central battleground for this important instrument of direct democracy. Over the past 30 years, South Dakota has maintained a strong conservative majority in both chambers of its legislature. Even so, this has not stopped initiative campaigns from fighting for and achieving liberal change. In the wake of a series of major victories for liberal initiatives, conservative members of the South Dakota legislature have become increasingly concerned about the potential of the initiative process as a counter to their agenda. This concern has evolved into an ongoing, systematic effort by the South Dakota State Legislature to cripple the efficacy of citizen lawmaking, primarily through the passage of a series of bills that gradually modify the initiative process. These bills, taken cumulatively over time, will have a disastrous effect on this historically important feature of South Dakota’s democracy.
South Dakota and the Initiative Process
Within the broader history of the initiative process, South Dakota shares a particularly powerful and unique connection with this instrument of direct democracy. In 1898, South Dakota became the first state to pass a constitutional amendment allowing for citizens’ initiatives, both constitutional and statutory. At the time, there was a rising tide of progressivism sweeping across the nation which, combined with fears about the potential for unrepresentative, corrupt, or ineffective legislatures, bolstered support for actions placing more power in the hands of the people. The citizens’ initiative became a leading method of addressing this concern in national political discourse.
Currently, the initiative process retains high levels of popular support among South Dakotans. A poll conducted in 2021 showed that 74.8% of respondents felt that “citizen ballot initiatives are an important part of the democratic process” and 62.6% said they disagreed or strongly disagreed that “the South Dakota Legislature should make it more difficult for citizen initiatives to get onto the ballot.” This popularity remains one of the main defenses protecting the initiative process in South Dakota.
2020 and Amendment A—A Watershed Moment
The 2020 election proved to be a consequential moment for the state’s initiative process. Amendment A, an initiated amendment for cannabis reform, had gained enough signatures to be placed on the general election ballot in November 2020. The amendment would legalize and regulate marijuana use for adults aged 21 or older while also requiring the legislature to enact laws for the cultivation and regulation of hemp. Given South Dakota’s conservative majority in the state legislature, such a broad and extensive policy for legalization would have likely proven too liberal for passage through both chambers. The initiative, however, proved to be widely popular with the general public. Ultimately, Amendment A passed on Nov. 5, 2020, with 54.2% percent of the vote. The electoral victory of Amendment A had succeeded in demonstrating the incredible potential of the initiative process for liberal change in a conservative state.
Before addressing the threat posed by potential future initiatives, conservative forces within the state quickly moved to effectively kill the recently approved amendment. Their post hoc attack on Amendment A came in the form of a judicial challenge filed by Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller, who argued that the amendment violated the state constitution’s single-subject rule by simultaneously legalizing both marijuana and hemp. Despite the case originally lacking judicial standing, it gained standing when Governor Kristi Noem issued an executive order stating Miller was acting on her behalf. Ultimately, the State Supreme Court struck down Amendment A as unconstitutional. Having succeeded at eliminating the progressive initiative, conservatives in the state, particularly within the legislature, began to consider ways to mitigate the prospect of future liberal initiatives that Amendment A had heralded.
Amendment C—A Precursor Attack on the Initiative Process
It would not be long after the dust of Amendment A had settled that warning alarms would signal a direct attack on the initiative process. While Amendment A had met its demise in a court of law, future liberal initiatives remained a stark threat to the state legislature’s conservative agenda. In June 2022, the state legislature referred Amendment C to the public, directly placing the legislation on the upcoming primary ballot. It would require a 60% supermajority vote to ensure the passage of all ballot initiatives that would increase taxes or fees or require the state to spend at least $10 million in the first five fiscal years. In a state that already leans conservative, the change from a simple majority to a supermajority threshold would make it incredibly difficult to gain the number of votes needed to pass a liberal initiative.
The proposal of Amendment C represented a new strategy on the part of South Dakota conservatives. Instead of seeking a judicial remedy to eliminate an initiative after it was approved in an election, the legislature became a key player and began adopting laws that would make it more difficult for one to pass in the first place. Given the popularity of the initiative process in South Dakota, any blatant attempt to directly dismantle it would be incredibly controversial with the public. To avoid widespread backlash, the legislature placed Amendment C, a middle-of-the-road attempt to restrict the probability of initiatives passing rather than completely dismantling the process, on South Dakota’s June primary ballot. This placement was unusual, given that it is uncommon to vote on legislation during primary elections, but strategic, as primary elections tend to have a lower voter turnout than general elections. One Republican state senator commented on its unusual placement, directly confirming that the amendment was placed on the primary ballot in order to raise the vote threshold for a Medicaid expansion initiative appearing on the general election ballot later that year. The legislature essentially situated the amendment in the hands of voters, diverting blame from itself, in the event it was approved, while counting on lower turnout and lack of information to ensure the amendment’s success. Some citizens reported not being aware of the legislation at all.
Immediately, political activists sounded the alarm on the legislature’s attempt to sneak an attack on the initiative process past the voters. The effect of these warnings was evident. The primary election had the highest turnout in over 10 years. On June 9, 2022, Amendment C was defeated with a strong 67.4% percent “no” vote. Nevertheless, Amendment C only marked the beginning of this new strategy of attack.
The Current GOP Strategy for Attacks on the Initiative Process
Despite its electoral defeat, Amendment C has provided lessons that the South Dakota State Legislature has utilized to further hinder ballot initiatives. Amendment C proved that voters in the state, when vigilant, do not approve of attempts to weaken the power of the initiative, and when given the choice, they vote in favor of a strong and fair initiative process. As a result, the recent, ongoing attacks by the legislature have seen another strategy change defined by two critical features.
First, attempts to weaken the initiative process now occur within the chambers of the legislature itself, isolated from the will of the voters. Second, the attacks take the form of small, seemingly minor changes to initiative laws that easily pass by the voters without seeming like a direct challenge to the initiative process. However, these laws pose a grave cumulative threat to future initiatives. The latest legislative session, which ran from January to March 2024, serves as a critical example of this new strategy.
Among the many bills proposed during that session that posed a credible threat, one stood out among the rest: House Bill (HB) 1244. On Jan. 31, 2024, HB 1244 was introduced to the legislature. If passed, it would allow for individuals to remove their signature from an initiative petition by contacting the Secretary of State. Some, such as State Representative Jon Hansen, who introduced the bill in response to a petition to restore abortion protections in the state, argued that HB 1244 would strengthen the initiative process by allowing voters the freedom to revoke their signatures, particularly when they feel they have been misled about the nature of the initiative.
Such a bill would have an incredibly detrimental effect on the initiative process. It makes it incredibly difficult for petitioners to get an accurate estimate of their valid signatures, particularly in the weeks leading up to submission. Additionally, it creates the possibility of voters being harassed or intimidated into removing their signatures. Furthermore, signing a petition does not represent the final say that a voter has over whether they support its contents. Rather, the action symbolizes their belief that the issue should be presented to voters on election day, at which point voters can ultimately say whether or not they support it. Therefore, the justification presented by the conservative members of the legislature is unfounded.
Ultimately, the bill was passed and signed into law by Governor Noem. This bill represents the first step in a new, broader strategy employed by the state legislature to systematically reduce the effectiveness of the initiative process. Conservative legislators are taking matters into their own hands, devising laws in their own chambers and obscuring the detrimental effects under the guise of logistical changes or efforts to enhance the integrity of the process. These laws, which taken alone may seem insignificant, pose a grave danger for future attempts to pass initiatives or even get them to qualify for the ballot. Such action by the state legislature, if left unchecked, may be the first step toward serious infringement of South Dakotans’ ability to engage in direct democracy.
While the South Dakota State Legislature engages in a clear and systematic attempt to hinder the initiative process, there remains hope that this historical institution can be preserved. The initiative’s popularity remains strong in the state, and increased awareness of the ongoing attacks on direct democracy continues to play a critical role in defending the institution. To this end, newly formed groups, such as the Voter Defense Association of South Dakota (VDA), seek to have a presence in the state capital, keeping voters informed on any new attempts to injure the initiative process. If the initiative process is to be protected, the citizens of South Dakota must be just as coordinated in their effort to protect it as those in the legislature have been to dismantle it.
John Brunner (CC ’25) is a senior double majoring in political science and Italian. Having worked for various statewide political campaigns in South Dakota, he is interested in the complexities of midwestern politics. In his free time, he enjoys playing guitar and cooking.