SIOUX FALLS (AP) – South Dakota’s first-in-the-nation law that bans out-of-state money from ballot question campaigns faces an uncertain future, with critics saying it’s likely to be challenged in court.
The ballot question easily passed Tuesday in an election that also saw South Dakota voters approve an initiative to require constitutional amendments to stick to a single subject. House Speaker Mark Mickelson, who spearheaded both, has won changes to the state’s ballot question system since out-of-state donors put more than $10 million into campaigns for or against South Dakota questions during the 2016 election cycle.
“I think these guys are going to take their chips and go play in Idaho or North Dakota and leave us alone,” Mickelson said. As for a lawsuit against the out-of-state ban, he said: “Bring it on. We’ll win. And it’s a fight worth having.”
But Don Haggar, state director of Americans for Prosperity-South Dakota, said he expects it to be overturned.
“I think it’s clearly unconstitutional on several levels and we are examining our options as far as potential litigation is concerned,” Haggar said.
The U.S. Supreme Court has interpreted the Constitution’s free-speech protections as prohibiting any limitations on money in ballot measure elections, Paul S. Ryan, vice president of policy and litigation at the nonprofit Common Cause, told The Associated Press earlier this year.
The high court has said that contributions to candidates can be limited to prevent the corruption of public officials. At least two states, Alaska and Hawaii, restrict out-of-state contributions to candidates, but Alaska’s limits face a court challenge.
Josh Altic, ballot measures project director at online political encyclopedia Ballotpedia, said in an email he’s confident the South Dakota measure would be the first statewide prohibition on out-of-state contributions to ballot question campaigns. It’s set to take effect in July.
It bars contributions to ballot question committees from nonresidents, out-of-state political committees and entities that haven’t filed with the secretary of state’s office for the preceding four years.
Doug Kronaizl, who worked on an unsuccessful government ethics amendment this year, said he thinks it will make the ballot question system less transparent, contending the law has loopholes that groups will seek to exploit. Kronaizl said the single-subject rule will turn the initiative process more litigious.
“I definitely see that having a much more tangible effect, because ... they don’t tell you what single subject means, so that just means it’s up to a judge to decide at the end of the day,” Kronaizl said.
South Dakota was the first state to adopt citizen initiatives, in 1898. Mickelson said the single-subject measure strengthens the state’s initiative system, providing clarity to residents about what they’re voting on.
“If people want to amend the constitution, it’s one idea at a time, and that’s a good thing,” Mickelson said. “It’s not blocking any particular idea or kind of idea, it just says you don’t package a bunch of them together and hide the bad ones.”