How South Dakota Voters Won a Power Struggle With G.O.P. Legislators

Not-so-subtle tactics to target referendums

Chris Melody Fields Figueredo, the executive director of the Ballot Initiative Strategy Center, described a “growing trend of tactical ways to make the process harder,” pointing to her group’s tally of 108 laws introduced this year in 26 states that would make technical tweaks to the rules surrounding ballot initiatives.

Since 2017, Fields Figueredo said, the center had counted a fivefold increase in bills introduced and enacted that would make it more difficult to pass ballot measures.

Sometimes those tweaks take Kafkaesque forms.

In Arkansas, for instance, a drive to establish a nonpartisan redistricting commission ran into a deviously written 2015 law requiring that canvassers for the ballot initiative pass a federal background check conducted by the State Police.

But there was a catch. The State Police could not do federal background checks. So the group behind the ballot drive, Arkansas Voters First, pulled what information it could from publicly available records and submitted thousands more signatures than required. The secretary of state rejected those background checks on the grounds that the canvassers had not “passed,” and threw out more than 10,000 signatures.

Litigation followed. In a 2020 decision, the Arkansas Supreme Court sided with the secretary of state, ruling that the statute had mandated the background checks, whether or not the task was impossible. In a dissent, Justice Josephine Linker Hart pointed out the absurdity of the statute, noting that “the State Police do not ‘pass’ or ‘fail’ the subject of a background check” — they merely share the information from the relevant databases.

“It was wild,” said Bonnie Miller, who led the Arkansas Voters First petition drive. “I’m still not over it.”

A court later threw out the background-check requirement, but the cat-and-mouse game goes on: The Arkansas General Assembly passed a new law that lengthened the list of offenses that disqualify paid canvassers. And a measure similar to the one South Dakota voters just rejected, raising the threshold for successful ballot initiatives to 60 percent, is now on the ballot.