South Dakota Initiated Measure 24, Ban Out-of-State Contributions to Ballot Question Committees Initiative (2018)

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South Dakota Initiated Measure 24
Flag of South Dakota.png
Election date
November 6, 2018
Topic
Direct democracy measures and Elections and campaigns
Status
Approveda/Overturnedot Overturned
Type
State statute		Origin
Citizens


The South Dakota Ban Out-of-State Contributions to Ballot Question Committees Initiative, Initiated Measure 24, was on the ballot in South Dakota as an initiated state statute on November 6, 2018. It was approved. In May 2019, Measure 24 was ruled unconstitutional and the state was blocked from enforcing it.

A "yes" vote was a vote in favor of banning individuals, political action committees, and other entities from outside South Dakota from making contributions to ballot question committees.
A "no" vote was a vote against banning individuals, political action committees, and other entities from outside South Dakota from making contributions to ballot question committees.

Election results

South Dakota Initiated Measure 24

Result Votes Percentage

Approved Yes

174,960 55.52%
No 140,172 44.48%
Results are officially certified.
Source


Aftermath

Lawsuits

Two lawsuits were filed seeking to overturn IM 24 on the grounds that it violates the U.S. Constitution. Judge Charles Kornmann heard testimony for both lawsuits on May 3, 2019. On May 9, 2019, Judge Kornmann ruled that Measure 24 violated the First Amendment and the Commerce Clause of the U.S. Constitution by impeding political free speech rights and interfering with the transfer of money from one state to another.[1]

Cory Heidelberger (D) and SD Voice vs. state officials:

  
Lawsuit overview
Issue: Whether or not IM 24 violates the First Amendment of the U.S. Constitution, the Dormant Commerce Clause of the U.S. Constitution, and the Equal Protection Clause of the 14th Amendment
Court: United States District Court
Ruling: Ruled in favor of plaintiffs, invalidating Measure 24 as unconstitutional and blocknig the state from enforcing the initiative
Plaintiff(s): Cory Heidelberger (D) and his ballot question committee, SD VoiceDefendant(s): South Dakota Governor Kristi Noem (R), Attorney General Jason Ravnsborg (R), and Secretary of State Steve Barnett (R)
Plaintiff argument:
IM 24 is unconstitutional and should not be implemented		Defendant argument:
Unkown

  Source: The Daily Republic

Former Attorney General Marty Jackley (R) and others vs. state officials:

  
Lawsuit overview
Issue: Whether or not IM 24 violates the First and Fourteenth Amendments of the U.S. Constitution and the commerce clause
Court: United States District Court
Ruling: Ruled in favor of plaintiffs, invalidating Measure 24 as unconstitutional and blocknig the state from enforcing the initiative
Plaintiff(s): Former Attorney General Marty Jackley (R), the South Dakota Newspaper Association, Retailers Association, Broadcasters Association and Chamber Ballot Action Committee, as well as Americans for Prosperity and individual Thomas Barnett Jr.Defendant(s): Attorney General Jason Ravnsborg (R), and Secretary of State Steve Barnett (R)
Plaintiff argument:
IM 24 is unconstitutional because it attempts to regulate interstate commerce, violates the plaintiff's rights, and discriminates against their economic activity		Defendant argument:
Unkown

  Source: Aberdeen News

In his lawsuit, Cory Heidelberger argued that IM 24 was not truly designed to prevent out-of-state influence. Heidelberger said, "The evidence of that is they've made no effort to ban out-of-state lobbyists. If the claim is we don't want out-of-state interests, go through the lobbyists in Pierre and see how many are being paid by out-of-state corporations. Look through the testimony and see how many out-of-state people are able to testify on bills."[2][3]

Former Attorney General Marty Jackley (R) filed a lawsuit on behalf of six plaintiffs: the South Dakota Newspaper Association, Retailers Association, Broadcasters Association and Chamber Ballot Action Committee, as well as Americans for Prosperity and individual Thomas Barnett Jr. The plaintiffs argued that they would "suffer significant civil penalties" under IM 24 for accepting financial contributions from out-of-state lobbyists.

Plaintiffs said, "The Out-of-State Plaintiffs want to engage in debate on public issues in South Dakota by contributing to the South Dakota Plaintiffs. The South Dakota Plaintiffs want to engage in debate on public issues by receiving contributions from the Out-of-State Plaintiffs and other out-of-state persons to fund their advocacy efforts, but the Ban prohibits them from exercising their free speech rights and bans their political association rights.”[4]

On May 9, 2019, Judge Kornmann ruled in favor of plaintiffs in a decision that applies to both lawsuits and declared that Measure 24 violated the First Amendment and the Commerce Clause of the U.S. Constitution by impeding political free speech rights and interfering with the transfer of money from one state to another. The ruling blocks the state from enforcing the initiative, which was set to become effective on July 1, 2019. Kornmann said the evidence in the case “demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy.” Concerning an appeal of the decision, Timothy Bormann, chief of staff for Attorney General Jason Ravnsborg (R), said that the attorney general’s office was considering the ruling and “examining the avenues available to our office that best coincide with protecting the best interests of the people and the State of South Dakota.”[5]

Overview

What did the initiative do?

The measure banned individuals, political action committees, and other entities from outside South Dakota from making contributions to ballot question committees. Any entity that had not registered with the South Dakota Secretary of State's office for at least four years was prohibited from making contributions to state ballot measure campaigns.[6]

A ballot question committee found to have accepted an out-of-state contribution would be fined an amount equal to 200 percent of the prohibited contribution by the secretary of state. Courts were also given authority to fine individuals, committees, and entities up to $5,000 per violation, with fine revenue to be deposited in the general fund.[6]

Out-of-state contributions

No states regulated out-of-state contributions to ballot measure campaigns as of January 2018. Out-of-state donors contributed over $10 million to ballot measure campaigns in South Dakota in 2016 out of a total of about $12.5 million spent on South Dakota ballot measure campaigns. Ballotpedia tracked about $1 billion in total contributions to statewide ballot measure campaigns nationwide in 2016.[7][8][9]

State of the ballot measure campaigns

Ballotpedia identified one ballot measure committee, Protect Our Ballot SD, registered in support of the measure. The committee raised $53,794.73 and expended it all. The top donor in support of Initiative 24 was the Daugaard for South Dakota committee, which contributed $40,000.[10][11]

Note: $4,663.11 was subtracted from Protect Our Ballot SD's contributions and expenditures because that amount was given to the W is Wrong committee which opposed Amendment W.

Ballotpedia did not identify any committees registered to oppose Initiated Measure 24.[11]

Text of measure

Ballot title

The ballot title was as follows:[6]

“ An initiated measure prohibiting contributions to ballot question committees by non-residents, out-of-state political committees, and entities that are not filed with the Secretary of State.[12] ”

Ballot summary

The ballot summary was as follows:[6]

“

This measure prohibits contributions to statewide ballot question committees by non-residents, by political committees organized outside South Dakota, and by any entity that is not filed as an entity with the Secretary of State for the four years prior to making a contribution. It requires the Secretary of State to impose a civil penalty on any ballot question committee that accepts a prohibited contribution. The civil penalty is double the amount of the contribution. The measure requires the Secretary of State to investigate alleged contribution violations prohibited by this measure.

Currently, there are state laws regulating other kinds of election-related contributions, disclaimers, and disclosures. Violations of these laws are classified as misdemeanors and are subject to criminal penalties. The measure allows a court to impose a civil penalty (up to $5,000 per violation) in addition to the criminal penalty. Under the measure, the Secretary of State must investigate alleged violations of these particular election-related laws.

All civil penalties collected under this measure will be placed in the State general fund.

The measure is likely to be challenged on constitutional grounds.[12]

”

Full text

The full text of the proposed measure is available here.

Readability score

See also: Ballot measure readability scores, 2018
Using the Flesch-Kincaid Grade Level (FKGL and Flesch Reading Ease (FRE) formulas, Ballotpedia scored the readability of the ballot title and summary for this measure. Readability scores are designed to indicate the reading difficulty of text. The Flesch-Kincaid formulas account for the number of words, syllables, and sentences in a text; they do not account for the difficulty of the ideas in the text. The attorney general wrote the ballot language for this measure.


The FKGL for the ballot title is grade level 18.1, and the FRE is 15.3. The word count for the ballot title is 28, and the estimated reading time is 7 seconds. The FKGL for the ballot summary is grade level 13.7, and the FRE is 28.9. The word count for the ballot summary is 182, and the estimated reading time is 48 seconds.

In 2018, for the 167 statewide measures on the ballot, the average ballot title or question was written at a level appropriate for those with between 19 and 20 years of U.S. formal education (graduate school-level of education), according to the FKGL formula. Read Ballotpedia's entire 2018 ballot language readability report here.

Support

Protect Our Ballot SD led the campaign in support of the measure.[13][14]

Rep. Mark Mickelson (R-13), speaker of the South Dakota House of Representatives, proposed the ballot initiative.[6] Rep. Mickelson was a co-sponsor of a 2017 bill to put limits on out-of-state contributions to ballot question committees.

Arguments

  • Rep. Mark Mickelson (R-13) said, "People in far away places who don’t live here and have no demonstrable business interest don’t have any business using our state as a test for their ideas. It’s an abuse of the purpose of the initiated measure process."[15]

Opposition

Arguments

  • Ben Lee, state director of Americans for Prosperity - South Dakota, stated, "I believe that citizens should have the right to support the causes and the issues that they believe in without fear of harassment and without unconstitutional restrictions."[16]
  • Cory Allen Heidelberger stated that Initiated Measure 24 was unconstitutional. Referring to a ruling in federal court over a residency requirement in Colorado, He said, "Judge Brimmer’s ruling supports the arguments that the Koch Brothers and I will make against G. Mark Mickelson’s Initiated Measure 24, his unconstitutional ban on out-of-state contributions to ballot question committees. Money is speech, and spending money to express one’s opinion about a ballot measure is core political speech."[17]

Campaign finance

See also: Campaign finance requirements for South Dakota ballot measures
Total campaign contributions:
Support: $53,794.73
Opposition: $0.00

Ballotpedia identified one ballot measure committee, Protect Our Ballot SD, registered in support of the measure. The committee raised $53,794.73 and expended it all. The top donor in support of Initiative 24 was the Daugaard for South Dakota committee, which contributed $40,000.[10][11]

Note: $4,663.11 was subtracted from Protect Our Ballot SD's contributions and expenditures because that amount was given to the W is Wrong committee which opposed Amendment W.

Ballotpedia did not identify any committees registered to oppose Initiated Measure 24.[11]

Support

Committees in support of the Ban Out-of-State Contributions to Ballot Question Committees Initiative
Supporting committeesCash contributionsIn-kind servicesCash expenditures
Protect Our Ballot SD$53,794.73$0.00$53,794.73
Total$53,794.73$0.00$53,794.73
Totals in support
Total raised:$53,794.73
Total spent:$53,794.73

Donors

The top donors in support of Initiated Measure 24 were as follows:[10]

Donor Cash In-kind Total
Daugaard for South Dakota $40,000.00 $0.00 $40,000.00
Mickelson for District 13 House $10,000.00 $0.00 $10,000.00
Mickelson & Company LLC $7,137.84 $0.00 $7,137.84
G. Mark Mickelson $1,320.00 $0.00 $1,320.00

Opposition

No committees were registered to oppose Initiated Measure 24.[11]

Methodology

To read Ballotpedia's methodology for covering ballot measure campaign finance information, click here.

Media editorials

See also: 2018 ballot measure media endorsements

Support

Ballotpedia did not identify any media editorials in support of Measure 24. If you are aware of one, please send an email with a link to editor@ballotpedia.org.

Opposition

  • The Rapid City Journal wrote: "If the U.S. Supreme Court in its Citizens United decision rejects limits on political action committees as an infringement on free speech, then IM 24 either cannot stand or cannot function. Voters should save themselves the money and the courts the trouble. Reject IM 24."[18]
  • The Argus Leader wrote: "Championed by House Speaker Mark Mickelson, it has already been flagged as likely to be challenged on constitutional grounds. It is concerning as a limit on free speech expression and as a move by lawmakers to limit inconvenient voter-initiated measures."[19]

Background

Campaign finance requirements in South Dakota

See also: Campaign finance requirements for South Dakota ballot measures

Before the approval of Initiated Measure 24, the state did not have special regulations for out-of-state contributions to ballot measure campaigns. South Dakota state law provided that persons and organizations were allowed to make unlimited contributions to ballot question committees. South Dakota state law defines a ballot question committee as, "a person or organization that raises, collects or disburses contributions for the placement of a ballot question on the ballot or the adoption or defeat of any ballot question." Ballot question committees cannot make contributions to political action committees, political parties, or candidates.[20] [21]

Similar proposed laws in 2017 and 2018

See also: Changes in 2017 to laws governing ballot measures in South Dakota and Changes in 2018 to laws governing ballot measures in South Dakota

During the 2017 legislative session, the South Dakota State Legislature considered nine changes to the laws governing ballot measures, including House Bill 1074 (HB 1074). HB 1074 was approved in the state House of Representatives, but was tabled in the state Senate, resulting in the bill's defeat for the session. Again in 2018, House Bill 1216—a bill very similar to HB 1074—was introduced. It passed in the House 36 to 30 but died in a Senate committee.

Like the Ban Out-of-State Contributions to Ballot Question Committees Initiative, HB 1074 and HB 1216 were designed to regulate out-of-state contributions to ballot measure campaigns. Unlike the initiative, however, the bills would not have banned all contributions but rather aggregate contributions from a single out-of-state source in excess of $100,000 during a general election cycle.[22] An earlier version of the 2017 bill would have limited contributions from out-of-state sources to 75 percent of the committee's total funding from in-state sources.[23]

Rep. Mark Mickelson (R-13), speaker of the South Dakota House of Representatives and the initiative's proponent, was a sponsor of HB 1074 and HB 1216 in the state legislature. On February 22, 2017, the state House approved HB 1074 in a vote of 50 to 18, with two members excused. Democrats were split on the bill, voting 5-5. A majority of Republicans, 75 percent, voted in favor of the bill, while 22 percent voted against it. On March 1, 2017, the Senate State Affairs Committee voted six to one, with two members excused, to table the bill for the legislative session. In 2018, the state House voted 36-30 in favor of HB 1216. All 36 votes in favor were from Republicans. The votes against consisted of 23 Republicans and eight of 10 Democrats. Two Democrats and two Republicans were excused.[24]

Vote in the South Dakota House of Representatives
February 22, 2017
Requirement: Simple majority vote of all members in each chamber
Number of yes votes required: 36  Approveda
YesNoNot voting
Total50182
Total percent71.43%25.71%2.86%
Democrat550
Republican45132
Vote in the South Dakota House of Representatives
February 14, 2018
Requirement: Simple majority vote of all members in each chamber
Number of yes votes required: 36  Approveda
YesNoNot voting
Total36304
Total percent51.43%42.86%5.71%
Democrat082
Republican35232

Out-of-state contributions and ballot measures

Ballotpedia tracked about $1 billion in contributions to ballot measure campaigns nationwide in 2016.[7] Of that, about $12.5 million was contributed to the campaigns in support of or opposition to measures in South Dakota. Out-of-state donors accounted for 75 percent of ballot measure campaign contributions, providing $9.4 million to ballot measure campaigns in South Dakota in 2016. Details about the supporting and opposing campaign contributions and the amount of out-of-state contributions for each measure are in the chart below and can be viewed by clicking [show]:[8][9]

Restrictions on out-of-state contributions

See also: Changes in 2017 to laws governing ballot measures
See also: Changes in 2018 to laws governing ballot measures

No states regulated out-of-state contributions to ballot measure campaigns as of January 2018. In 2017, state legislatures in Arizona and North Dakota considered bills to prohibit or restrict out-of-state spending on ballot measure campaigns. However, neither of the bills were approved. The attorney general's office stated that the measure is likely to face a constitutional challenge if passed. Paul S. Ryan, a vice president at Common Cause said the measure would conflict with a 1981 U.S. Supreme Court decision that held contributions to ballot measure committees cannot be limited under the First Amendment. In Citizens Against Rent Control v. City of Berkeley, the U.S. Supreme Court said that an ordinance in question did not present a risk of corruption such that restrictions on contributions to ballot measure campaigns were justified.[25][6][26]

Election policy on the ballot in 2018


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Voters considered ballot measures addressing election policy in 15 states in 2018.

Redistricting:

See also: Redistricting measures on the ballot
  • Missouri Amendment 1, Lobbying, Campaign Finance, and Redistricting Initiative (2018) Approveda - The PAC Clean Missouri collected signatures to get the initiated amendment on the ballot. The measure made changes to the state's lobbying laws, campaign finance limits for state legislative candidates, and legislative redistricting process. The position of nonpartisan state demographer was created. Amendment 1 made the demographer responsible for drawing legislative redistricting maps and presenting them to the House and Senate apportionment commissions.

Voting requirements and ballot access:

  • Florida Amendment 4, Voting Rights Restoration for Felons Initiative (2018) Approveda - The committee Floridians for a Fair Democracy collected more than the required 766,200 signatures to get Amendment 4 placed on the ballot. The measure was designed to automatically restore the right to vote for people with prior felony convictions, except those convicted of murder or a felony sexual offense, upon completion of their sentences, including prison, parole, and probation. It was approved.
  • North Carolina Voter ID Amendment (2018) Approveda - This amendment was referred to the ballot by the state legislature along party lines with Republicans voting in favor of it and Democrats voting against it. It created a constitutional requirement that voters present a photo ID to vote in person. It was approved.

Arkansas Issue 3, a legislative term limits initiative, was certified for the ballot but was blocked by an Arkansas Supreme Court ruling. The measure would have imposed term limits of six years for members of the Arkansas House of Representatives and eight years for members of the Arkansas Senate. The ruling came too late to remove the measure from the ballot, but the supreme court ordered election officials to not count or certify votes for Issue 3.

Campaign finance, political spending, and ethics:

  • Colorado Amendment 75, Campaign Contribution Limits Initiative (2018) Defeatedd - Proponents collected more than the required 136,328 valid signatures and met the state's distribution requirement to qualify this initiative for the ballot. The measure would have established that if any candidate for state office directs (by loan or contribution) more than one million dollars in support of his or her own campaign, then every candidate for the same office in the same primary or general election may accept five times the aggregate amount of campaign contributions normally allowed. It was defeated.

Path to the ballot

See also: Laws governing the initiative process in South Dakota

The state process

In South Dakota, the number of signatures required to qualify an initiated state statute for the ballot is equal to 5 percent of the votes cast for governor in the previous gubernatorial election. Signatures must be submitted by the first Tuesday of May during a general election year.

The requirements to get an initiated state statute certified for the 2018 ballot:

Once the signatures have been gathered and filed, the secretary of state verifies the signatures using a random sample method.

Details about this initiative

Rep. Mark Mickelson (R-13) submitted an initiative proposal to the LRC on June 14, 2017, which then issued comments.[27] The initiative was approved for circulation on August 2, 2017.[6] He said that he hoped the campaign would begin collecting signatures in August 2017.[28]

On November 6, 2017, supporters submitted over 18,000 signatures. At least 13,871 of those signatures needed to be valid in order for the measure to qualify for the 2018 ballot.[29]

The secretary of state's office certified the measure for the ballot on January 4, 2018. Signatures were verified using a random sample method and about 81 percent of the 18,000 submitted signatures were found to be valid. The deadline to challenge approval of the measure for the ballot was February 5, 2018.[30]

Cost of signature collection:
Sponsors of the measure hired individuals to collect signatures for the petition to qualify this measure for the ballot. A total of $18,750.00 was spent to collect the 13,871 valid signatures required to put this measure before voters, resulting in a total cost per required signature (CPRS) of $1.35.[31]

Initiative proponents stated that between $35,000 and $40,000 was spent on the signature petitions for Initiative Measure 24 and Initiative Measure 25, combined.[31]

Related measures

Direct democracy measures measures on the ballot in 2018
StateMeasures
FloridaFlorida Amendment 3: Voter Approval of Casino Gambling Initiative Approveda
CaliforniaCalifornia Proposition 71: Effective Date of Ballot Measures Amendment Approveda
[[2018 ballot measures|]][[South Dakota Constitutional Amendment X, 55% Vote Requirement to Approve Constitutional Amendments Measure (2018)|]] 
South DakotaSouth Dakota Constitutional Amendment Z, Single-Subject Rule for Constitutional Amendments Approveda
South DakotaSouth Dakota Constitutional Amendment W, State Campaign Finance and Lobbying Laws, Government Accountability Board, and Initiative Process Defeatedd

See also

External links

Support

Footnotes

  1. ↑ Mitchell Republic, "Judge to weigh evidence in lawsuits calling South Dakota ballot measure a violation of free speech," accessed May 7, 2019
  2. ↑ Jamestown Sun, "South Dakota man files lawsuit challenging implementation of initiated measure," accessed Mach 5, 2019
  3. ↑ KDLT, "Blogger Challenges SD Ban on Out-of-State Fundraising," accessed March 5, 2019
  4. ↑ Aberdeen News, "Lobbyists sue SD officials over ban on out-of-state contributions to ballot measure committees," accessed April 19, 2019
  5. ↑ The Washington Post, "Judge strikes down South Dakota out-of-state fundraising ban," May 9, 2019
  6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 South Dakota Attorney General, "Attorney General's Statement," July 31, 2017
  7. ↑ 7.0 7.1 Ballotpedia tracked all donations received by committees registered to support or oppose ballot measures in 2016. In certain instances, the same committee registered to support or oppose more than one ballot measure, which means the total contributions reported for all measures combined may be slightly higher than the total amount of money that was actually spent.
  8. ↑ 8.0 8.1 The Pew Charitable Trusts, "Big Money Pours into State Ballot Issue Campaigns," September 23, 2016
  9. ↑ 9.0 9.1 The Washington Post, "Out-of-state fundraising ban to be on South Dakota ballot," January 4, 2018
  10. ↑ 10.0 10.1 10.2 South Dakota Secretary of State, "Protect Our Ballot SD," accessed December 27, 2017
  11. ↑ 11.0 11.1 11.2 11.3 11.4 South Dakota Secretary of State, "Campaign Finance Reporting System," accessed January 25, 2019
  12. ↑ 12.0 12.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  13. ↑ Facebook: Protect Our Ballot SD, "Home," accessed February 26, 2018
  14. ↑ KDLT, "Signature Gatherers Take Advantage Of State Fair," September 3, 2017
  15. ↑ Argus Leader, "Lawmaker looks to ban out-of-state money at the ballot," June 20, 2017
  16. ↑ U.S. News, "Measure Aims to Ban Out-Of-State Giving to Ballot Questions," June 20, 2017
  17. ↑ Dakota Free Press, "Colorado Judge Rules Circulator Residency Requirement Violates First Amendment; Case Signals IM 24 Also Unconstitutional," May 3, 2018
  18. ↑ The Rapid City Journal, "Journal's stand on ballot issues," accessed November 4, 2018
  19. ↑ The Argus Leader, "Vote yes for Randy Seiler, no on Amendment W," accessed November 4, 2018
  20. ↑ South Dakota Codified Laws, "Section 12-27-1," accessed January 1, 2018
  21. ↑ South Dakota Secretary of State, "Contribution Limits," accessed January 1, 2018
  22. ↑ South Dakota Legislature, "HB 1074 (House State Affairs)," accessed January 1, 2018
  23. ↑ South Dakota Legislature, "HB 1074 (Introduced)," accessed January 1, 2018
  24. ↑ South Dakota Legislature, "HB 1074 History," accessed January 1, 2018
  25. ↑ U.S. News and World Report, "Measure Aims to Ban Out-Of-State Giving to Ballot Questions," June 20, 2017
  26. ↑ Justia, "Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981)," accessed January 10, 2018
  27. ↑ South Dakota Secretary of State, "Potential 2018 Ballot Questions," accessed June 20, 2017
  28. ↑ The Wichita Eagle, "House speaker turns to ballot measures over Legislature," July 28, 2017
  29. ↑ US News, "Voters May See Cannabis, Tobacco Tax on South Dakota Ballot," November 6, 2017
  30. ↑ The Daily Republic, "Out-of-state money ban for initiatives to appear on ballot," January 4, 2018
  31. ↑ 31.0 31.1 Ballotpedia staff writer, "Email correspondence with initiative sponsor," October 2018
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