BY STU WHITNEY
South Dakota News Watch
Has South Dakota soured on direct democracy?
The answer to that question will be partly answered during the 2025 legislative session, as Republican lawmakers continue a recent trend of trying to restrict the state’s first-in-the-nation initiative and referendum process.
In the spirit of such laws, the people will ultimately determine the fate of a South Dakota system that dates to 1898 and has led to progressive reforms such as increased minimum wage and Medicaid expansion in a deeply conservative state.
The power of residents to amend the state constitution through the petition process was added in 1972.
Michael Card, emeritus professor of political science at the University of South Dakota in Vermillion, calls this power “the gun behind the door,” allowing a given percentage of state residents to propose a law or amendment that must be approved at the polls.
The guiding principle is that “direct democracy” – which also allows existing laws to be challenged through referendum, as seen with the carbon pipeline debate in 2024 – provides a check on the “representative democracy” power of state legislators.
The Republican super majority in Pierre has frequently pushed back, passing laws to make it harder to get initiated measures and constitutional amendments on the ballot and raising the voting threshold for measures to pass.
‘Death by a thousand cuts’
Most prominent among the 2025 proposals is House Joint Resolution 5003, which would raise the percentage of voters needed to pass constitutional amendments in a statewide election to 60%.
That would match Florida and Illinois for the highest voting threshold among the 18 states that allow for constitutional amendments through the initiative process.
The resolution passed the House by a 61-5 vote on Jan. 22 and appears headed to the 2026 ballot, where a simple majority of voters can pass or reject it. Similar attempts to raise the voting threshold failed at the polls in 2018 and 2022.
Legislators have been more successful curtailing the process with statutory changes in Pierre. From 2018 to 2024, South Dakota passed 11 laws to make direct democracy more difficult, the most of any state, according to Ballotpedia.
These restrictions include petition deadlines, circulation requirements and allowing for the revocation of signatures. Another joint resolution proposed this year would increase the number of signatures required to make the ballot, from 5% to 10% of the general electorate for initiated measures and from 10% to 15% for constitutional amendments.
“They’re attempting to orchestrate the death of direct democracy by a thousand cuts,” said Rick Weiland, whose Dakotans for Health organization has been a frequent sponsor of ballot measures, including unsuccessful abortion rights and grocery tax repeal efforts in 2024. “They keep trying and trying because when people organize and use their voice, they become a threat to the political establishment.”
Federal courts have rolled back some of the restrictions as First Amendment violations, recognizing petition circulation as core political speech.
Holding amendments to higher standard
Rep. John Hughes of Sioux Falls, the Republican sponsor of House Joint Resolution 5003, said his proposal is meant to highlight the difference between initiated measures, which impact state statutes, and initiated amendments, which change the state constitution.
“I think all of us would agree that a constitution is different than a statute,” Hughes told House State Affairs committee members at a Jan. 17 hearing. “It’s intended to be much more permanent. It’s meant to be a fundamental expression of the near universal agreement of the people of South Dakota as to the rights, duties and values that we hold to.”
Republicans have criticized the use of initiated amendments for policy provisions such as Medicaid expansion, which passed in 2022, and legalization of recreational marijuana, which passed in 2020 but was overturned by the South Dakota Supreme Court for violating the state’s single-subject rule.
Nathan Sanderson, executive director of the South Dakota Retailers Association, said his group supports the joint resolution because policy programs that involve budget fluctuations are best handled within state statutes.
“(Our association) has always believed that the constitution should be reserved for a philosophy of governance, not for specific policies and programs,” Sanderson said. “Amending the constitution can only be done every two years and is not a very good way of handling nuanced policy.”
Do voters have ballot measure fatigue?
Card, who has authored several studies on direct democracy, told News Watch that the arguments from Hughes and Sanderson don’t fully explain the reasoning behind the latest attempt to restrict the process in South Dakota.
“I think it’s being cast as something other than what it really is,” Card said of the joint resolution. “What it’s really about is that the Democrats with a small minority (23% of registered voters) are doing what is popular with the citizenry in terms of proposing initiatives. The real intent is to limit the ability to pass some of these laws.”
But Hughes alluded to “fatigue” among voters toward ballot measures, with an average of nearly six measures on the ballot every two years since 2000. The highest during that period were 11 in 2006 and 10 in 2016.
Of the 122 measures that made the South Dakota ballot since 1985, 52 were successful, for a winning percentage of 43%.
Three of the most liberal measures on the 2024 ballot – abortion rights, grocery tax repeal and recreational marijuana legalization – all failed with less than 45% of the vote.
The only successful measures were populist (property rights groups rallying to refer a bill they saw as pro-pipeline) and staunchly conservative (allowing work requirements for Medicaid expansion, stemming from the Legislature).
But Card pointed out that even residents who don’t agree with many of the issues being put forth “aren’t going to give up a right that they have.”
Voters in 2022 strongly rejected Amendment C, which was placed on the primary ballot and would have required a 60% vote for ballot measures that raise taxes or spend $10 million in general funds in their first five years. That amendment, viewed as a preemptive strike against Medicaid expansion, managed only 33% of the vote.
Four years earlier was Amendment X, which came out of a legislative task force and would have required a 55% vote to approve constitutional amendments. That effort failed with just 47% support.
South Dakota blazes new ballot trail
It’s hard to assess the future of direct democracy in South Dakota without understanding the past, including the decision by voters in 1898 – nine years after statehood – to adopt the system of initiated ballot measures and referendums.
Several days after that election, the Omaha (Nebraska) Bee newspaper noted that South Dakota rejected women’s suffrage on the same ballot, observing that the state’s voters “were of the opinion that one experiment at a time was enough.”
The newspaper also noted that South Dakota’s system was partly based on the Switzerland model of allowing citizens to vote on how the country is run.
“That it has been at least fairly successful in the little country where it originated is true,” wrote the Omaha Bee in an editorial. “But (in America), the process has been looked upon by practical men as a pretty but impracticable theory. Other states will be satisfied to let South Dakota stand the cost of the experiment.”
The Chicago Record newspaper was more supportive of the direct democracy principle, framing it as a way for rural voters to have more say in their state’s legislative affairs, especially at a time when monied interests were gaining power as part of the rise of corporations and corruption in the Gilded Age.
“Of late there has been a growing tendency on the part of legislatures to submit to popular vote measures of importance relating especially to larger cities,” the editors wrote in an editorial. “The people of South Dakota, however, have put into operation a plan whereby the popular will can be given expression in law regardless of the indifference of the legislative body.”
‘No interference’ with people’s rights
This power of the people was elevated in 1972 with Amendment E, which expanded the resident petition process to include constitutional amendments in South Dakota.
In the House State Affairs hearing, Hughes incorrectly stated that this occurred in 1988 and that it “passed by a slim margin of our voters.” Actually, the change was approved by 67% of the vote when introduced in 1972.
The amendment, which also included provisions for calling constitutional conventions, was initiated by the Legislature and a constitutional revision commission. It was approved 67-2 by the House and 34-0 by the Senate before going on the general ballot.
Hughes told News Watch that he was referring to Amendment A from 1988. But that was a procedural change that removed the requirement that the Legislature enact a measure proposed by voters before it could be placed on the ballot. Lawmakers had no choice but to “vote” for the measure under this formality, which ruffled feathers politically.
“It eliminates a bit of red tape,” then-Legislative Research Director Terry Anderson told the Argus Leader at the time of that amendment. “It also makes it abundantly clear that there can be no interference with the people’s right to initiate laws.”
The amendment passed with 52% of the vote.
Progressive causes take hold
As the makeup of the South Dakota Legislature trended heavily Republican over the past 15 years (GOP legislators currently outnumber Democrats 95-9), direct democracy became a way to circumvent Pierre and take progressive issues to the polls.
One successful campaign was Weiland’s push to raise the state’s minimum wage from $7.25 per hour to $8.50 per hour in 2014, with future raises for inflation. Initiated Measure 18 passed with 55% of the vote.
When the Legislature voted in 2015 to exempt workers under age 18 from the required wage, Democrats gathered petitions to refer the law and more than 7 of 10 voters supported the referral, upholding the minimum wage.
“The message from the people was simple: Hands off,” said Weiland, who ran an unsuccessful campaign for U.S. Senate in 2014.
South Dakota’s minimum wage is currently $11.50 per hour, higher than neighboring Minnesota ($11.13).
Two years later came Initiated Measure 21, a bipartisan effort that targeted payday loan outlets and other predatory lenders by establishing a maximum interest rate of 36% on their loans.
The group faced aggressive opposition from the Atlanta-based owner of North American Title Loans and other payday and car title lenders, who were accused of luring low-income customers into high-interest loans.
Veteran political strategist Steve Hildebrand, who served as former President Barack Obama’s deputy campaign manager in 2008, was one of the key organizers behind IM 21, which passed with 76% of the vote.
“I’ve never been more proud of anything in my 30 years of political experience than trying to cap the interest on payday lending,” Hildebrand said during the campaign. “It’s time to stop treating our low-income families like dirt.”
Out-of-staters fueled Marsy’s Law
Those seeking to dial back direct democracy point to cautionary tales such as Marsy’s Law, a 2016 victims’ rights measure passed in South Dakota as a constitutional amendment as part of a nationally coordinated campaign.
The law was marred by unintended consequences. In some cases, law enforcement was unable to share information with the public in order to assist in solving crimes. There were also instances of alleged offenders being held longer behind bars because victims weren’t available to be notified of a bond hearing.
A legislatively referred constitutional amendment was placed on the ballot two years later to fix some of the problems and passed with 80% of the vote.
The original measure was funded by California tech billionaire Henry Nicholas, who took up the cause of victims’ rights after his sister, Marsy, was shot to death by an ex-boyfriend in 1983. He spent $2 million to orchestrate the campaign in South Dakota, including ads featuring TV personality Kelsey Grammar, whose sister was murdered in 1975.
“They made some mistakes,” said former Republican state legislator Mark Mickelson, who helped spearhead the follow-up amendment. “They didn’t consult stakeholders and they had some language issues. No one on the ground was comfortable with what was being proposed or how it would be implemented.”
Mickelson also helped orchestrate Amendment Z, a 2018 measure requiring that constitutional amendments involve only one subject “and that multiple proposed amendments to the constitution be voted on separately.”
That amendment passed with 62% of the vote and became the basis for the South Dakota Supreme Court overturning the passage of legalized recreational pot two years later.
The ruling found that Amendment A, the 2020 marijuana measure, “contains provisions embracing at least three separate subjects, each with distinct objects or purposes,” referring to recreational marijuana, medical marijuana and hemp.
South Dakota used as ‘laboratory’
Hughes mentioned out-of-state influence as a key factor in his quest to make it harder to pass constitutional amendments. The state’s simple majority provision and affordable advertising rates are cited as reasons that national advocacy groups view South Dakota as fertile ground for ballot efforts.
“My experience going door to door is that there is a weariness over (advertising) paid for by millions of out-of-state dollars to reshape and remold our state constitution,” Hughes testified at the Jan. 17 hearing. “It’s only because we have the 50-plus-one majority that we’re a target for being used as a laboratory for the emergence of new values and new ideas that many South Dakotans do not share.”
He pointed to Amendment G, the abortion rights measure placed on the 2024 ballot by Dakotas for Health. The campaign received a late influx of donations totaling $750,000 from Think Big America, a progressive advocacy group funded by Democratic Illinois Gov. JB Pritzker.
Not mentioned at the hearing was the fact that the anti-abortion campaign, led by groups such as Life Defense Fund and No G for SD, received a $500,000 donation from The Concord Fund, a Virginia-based nonprofit connected to conservative judicial activist Leonard Leo, as part of its effort to defeat the amendment.
Chase Jensen of Dakota Rural Action, which helped spur a grassroots petition effort that led to anti-pipeline forces rejecting Referred Law 21, said higher voting thresholds could lead to less involvement from everyday residents and more influence from wealthy political action groups, the opposite of Hughes’ intent.
“With the unprecedented concentration of wealth in society and politics today, we believe that raising the threshold of votes wouldn’t deter out-of-state money,” said Jensen. “It would only open the tap even further.”
‘What about your politicians?’
Weiland, who served as an aide to former Democratic U.S. Senate Leader Tom Daschle, has become closely linked to direct democracy through his work with progressive organizations such as Dakotans for Health and Take it Back.
He finds the argument against out-of-state money ironic given the story behind Initiated Measure 22, a successful 2016 ballot effort that revised lobbying and campaign finance laws while establishing a state ethics commission after several state scandals.
Republican legislators, decrying sloppy and confusing language in the law, sought a preliminary injunction and later repealed the measure with an emergency clause that ensured it could not be sent back to voters.
That experience spawned another reason for petitioners to prefer constitutional amendments over initiated measures – they’re impossible for the Legislature to overturn without getting the permission of voters.
As for the out-of-state money argument, Weiland called it hypocritical.
“You don’t like ballot measures getting funded by out-of-state interests?” he said. “Well, what about your politicians? All of our federal politicians have millions of dollars in their campaign accounts, and I can tell you that all of that money didn’t come from South Dakota.”
Weiland and Rapid City lawyer Jim Leach, who represents Dakotans for Health, have submitted wording for potential 2026 ballot measures to counteract what’s happening in Pierre.
One would prevent legislators from amending or repealing a resident-enacted ballot measure for seven years after it becomes effective, except by a three-fourths vote of both the House and Senate, followed by a vote in the general election.
The other would require that changes to a law that impacts the state’s initiative and referendum process would have to be approved by voters on a general election ballot.
As the push-and-pull battle over direct democracy in South Dakota continues, Leach said “we plan to keep fighting to preserve the rights of citizens to propose and vote on the laws they’re going to be subject to.”
This story was produced by South Dakota News Watch, an independent, nonprofit organization. Read more stories and donate at sdnewswatch.org and sign up for an email every few days to get stories as soon as they’re published. Contact Stu Whitney at stu.whitney@sdne