“A Systematic Assault”: GOP Rushes to Change Election Rules to Block Medicaid in South Dakota
The latest Republican effort to weaken direct democracy faces a key test next week in South Dakota, the first state in the nation to set-up a popular initiative process.
Quinn Yeargain, | May 30, 2022
When South Dakota organizers began gathering signatures to put Medicaid expansion on the ballot in 2022, their goal seemed very achievable—they needed to win just 50 percent of the vote in the next general election. Since 2018, ballot measures to expand Medicaid met that threshold in conservative Idaho, Missouri, Nebraska, Oklahoma, and Utah—victories that qualified hundreds of thousands of people for public health insurance.
Healthcare advocates pursued a ballot initiative to get around their Republican-run legislature, which has refused to expand Medicaid under the Affordable Care Act for the past decade. But state Republicans have responded by rushing to change the election’s rules.
The legislature placed a constitutional amendment on the state’s June 7 primary ballot that would make it far harder for future ballot initiatives to succeed, starting with the Medicaid measure that is scheduled on Nov. 8.
Amendment C, if adopted next week by the smaller pool of voters who decide primaries, would set a higher threshold for future ballot measures that involve spending more than $10 million over a period of five years—something that expanding Medicaid would inevitably do. Such ballot measures would need to gain the approval of 60 percent of voters, up from 50 percent.
The GOP’s bid to thwart the Medicaid initiative in South Dakota adds to a series of moves by the party to weaken direct democracy. In many states that Republicans dominate, progressive organizers have successfully appealed to voters with measures like Medicaid expansion that conservative legislatures have blocked, triggering intense backlash by Republican politicians against procedures of direct democracy that they are failing to control. In Idaho and Utah, the GOP’s new restrictions on ballot initiatives also closely followed Medicaid referendums.
The erosion of direct democracy resonates deeply in South Dakota, which was the first state in the nation to set-up a popular initiative process. Inspired by populist demands for new checks on politicians, the state’s 1898 reform empowered ordinary citizens to initiate ballot initiatives.
Republican politicians have responded by gradually restricting the initiative process. In 2016, voters adopted the South Dakota Accountability and Anti-Corruption Act, which set new ethics rules and created a system for public financing of political campaigns. Republican politicians repealed the measure, arguing that voters didn’t understand what was in it when they passed it.
The legislature then crafted two measures to make it harder for voters to initiate initiatives. The first would have required all constitutional amendments to receive 55 percent of the vote to be ratified, but South Dakotans rejected the proposal in 2018. They passed the second, which requires constitutional amendments to only relate to a “single subject.” Most states with ballot initiatives have such requirements, but there is tremendous variation in how this language gets interpreted. Some state supreme courts apply it broadly and only rarely hold that a proposal violates it, while others apply it much more stringently, routinely striking down proposals.
South Dakotans quickly learned that their supreme court, made up entirely of GOP appointees, would interpret the new requirement strictly. After voters approved legalizing marijuana in 2020, Republican Governor Kristi Noem challenged the constitutionality of the measure, and the state’s high court struck it down for encompassing more than one subject in November.
State Republicans further escalated their war on popular initiatives last year with a law that increases the font size of ballot petitions while requiring that the entire text fit on one page. This has made the organizing effort to gather signatures far less practical.
South Dakota advocates still managed to qualify an initiative to expand Medicaid, which would provide coverage to tens of thousands of low-income South Dakotans, for the November ballot.
But those same advocates have had to turn their attention to fighting next week’s Amendment C, the measure that increases the threshold for initiatives. Dakotans for Health, a group organizing for Medicaid, opposes the measure. Other groups have also come out against it, including the South Dakota Municipal League, several major health systems, and the state chamber of commerce.
Some Republicans have explicitly acknowledged that they scheduled Amendment C for the June ballot to stall November’s Medicaid expansion proposal.
Conservative anti-tax groups, including Americans for Prosperity, the organization founded by the Koch brothers, have fueled the campaign on behalf of Amendment C. And GOP leaders like Noem are focusing on making the case that Amendment C would forestall tax hikes.
Despite the GOP’s dominance in this legislature, the state Senate barely approved scheduling Amendment C for the June ballot; it only passed the chamber on a narrow 18 to 17 vote, with many Republicans balking at the proposal. Republican Senator Mike Diedrich said he backed the goal of Amendment C but opposed placing it on the ballot in June. As KELO-TV reported, Diedrich argued that it was “bad faith to cut off the process” that the ballot organizers “entered into in good faith” and was “unfair to the people who are following the laws.”
Troy Heinert, one of only three Democrats in South Dakota’s Senate, said Amendment C was part of “a systematic assault on the will of the people.”
It would be hard for Medicaid proponents to clear Amendment C’s 60 percent threshold, though it may not be insurmountable. The Medicaid initiatives in Missouri, Nebraska, Oklahoma, and Utah received between 50 percent and 54 percent of the vote, but Idaho’s triumphed with 61 percent in 2018. (Idaho was redder than South Dakota in the 2020 presidential election.)
Amendment C also faces a lawsuit on the grounds that it violates the state’s new single-subject requirement. But machinations by the state attorney general’s office delayed the litigation by months, preventing it from coming to a resolution before June 7.
The erosion of direct democracy in South Dakota mirrors how the GOP is reacting to initiatives they dislike elsewhere. According to an analysis last year by the Ballot Initiative Strategy Center, Republican lawmakers filed dozens of bills nationwide to make it harder for voter-initiated measures to make it onto the ballot, and many of them have become law.
In Utah, after voter-initiated statutes that legalized medical marijuana, expanded Medicaid, and created an independent redistricting commission all succeeded in 2018, the legislature repealed all of the statutes in its next session; they later added new restrictions on the process of gathering signatures, making it more burdensome for organizers. Mississippi’s supreme court shut down the state’s entire ballot initiative process last year while striking down a marijuana referendum. Similarly, after Idahoans approved Medicaid expansion in 2018, the legislature moved to thwart future efforts by greatly increasing the difficulty of qualifying an initiative for the ballot. The Idaho Supreme Court invalidated these restrictions last year, holding that voters’ powers to initiate statutes were “fundamental rights” that the legislature had infringed upon.
Luke Mayville, the co-founder of Reclaim Idaho, an organization that sponsored the state’s 2018 Medicaid expansion initiative, says the successes in Idaho and South Dakota are linked—and so is the backlash from the state legislatures.
“Successful initiative campaigns in deep-red states are shining a bright light on the refusal of Republican political establishments to address a whole range of urgent issues,” Mayville told Bolts, including the bread-and-butter issues that impact people’s everyday lives. Reclaim Idaho is championing a new initiative this year to increase education funding by $300 million per year.
“Politicians would prefer to avoid accountability for their failure, and that’s why they’re trying to subvert the initiative process,” he added.
This article has been updated to better reflect the history of the onset of the initiative process in 1898.