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

Coming on the same night that voters in San Francisco ousted their lightning rod of a district attorney, Chesa Boudin — in what was widely interpreted as a setback for progressive ideas on criminal justice — it would have been easy to overlook what happened on Tuesday in South Dakota.

But the results there are no less consequential for national politics. Voters in South Dakota sent a resounding message of their own to the state’s conservative power structure: We’re in charge here, not you.

The immediate issue was a constitutional amendment requiring that certain voter-initiated referendums must pass by 60 percent, rather than a simple majority. The measure was defeated decisively, with more than two-thirds of voters rejecting the proposed new threshold.

But this wasn’t just a political process story. It was the latest round in a national fight between voters and state legislatures, who have been battling for primacy on issues like marijuana legalization, gerrymandering and health care. Last year, my colleagues Reid Epstein and Nick Corasaniti took a broad look at Republican-led efforts to limit ballot initiatives, which have grown only more intense in the last 12 months.

In South Dakota, the ballot question was pushed by Republican state lawmakers who are hoping to defeat a November referendum on expanding access to Medicaid.

To David Daley, the author of several recent books on grass-roots democracy, it was a classic example of the power struggle playing out in state capitols across the country.

“Whenever citizens effectively use the ballot initiative to make policy changes the legislature opposes, lawmakers bite back, and they bite back hard,” Daley said.

Raising the threshold for ballot drives is an increasingly common tool. A new report by RepresentUs, a nonpartisan group that promotes ballot initiatives, found that since 2017, at least four states have passed laws that impose supermajority requirements and put them in front of voters as a ballot question, out of at least 64 bills proposed.

And it’s not always Republican lawmakers pitted against progressive voters.

“We’ve seen legislators attempt to threaten and limit the ballot-measure process in red, blue and purple states,” said Anh-Linh Kearney, a research analyst for RepresentUs, pointing to Democratic-controlled Colorado, which raised the requirement for passing constitutional amendments to 55 percent in 2016.

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.

Miller feels as if she’s battling for the very principle behind voter-led referendums. “This threshold, it’s just death to direct democracy in our state,” she said.

Opponents of the South Dakota amendment had a couple of factors working in their favor.

There’s the state’s long history with ballot initiatives: Father Robert Haire, a radical Catholic priest, helped pioneer the concept as an activist with the Populist Party in the 1880s.

Then there’s the fact that Medicaid is popular. Voter-led petitions have already powered Medicaid expansion in Idaho, Missouri, Nebraska, Oklahoma and Utah. The Kaiser Family Foundation, a nonprofit group that tracks information and trends about the country’s health care system, has found that three-quarters of Americans hold a favorable opinion of the program — including 76 percent of independents and 65 percent of Republicans.

At this point, only 12 states have not expanded Medicaid under the Affordable Care Act, despite its popularity. As you can see from this interactive map, also put together by Kaiser, these states are concentrated in the Deep South, along with Kansas, South Dakota, Texas, Wisconsin and Wyoming. But when Kaiser asked people in those states whether they wanted to expand Medicaid’s coverage, 61 percent said yes.

And finally, Fields Figueredo said, voters have a deep-seated aversion to having their choices limited by politicians — setting up inevitable clashes with lawmakers who “don’t like being told what to do.”

“People want the ability to make decisions for themselves,” she said.

Last night, we wrote about four candidates we were watching in Tuesday’s primaries, and 24 hours later, we have some results — but as expected, we’re still waiting for more.

In one of the three Republican primary challenges we were monitoring, the incumbent is safe. In the other two, it’s too soon to say.

Representative Dusty Johnson of South Dakota won the G.O.P. nomination over his challenger, Taffy Howard, a right-wing state representative. Howard had criticized Johnson for voting to form a House committee to investigate the Jan. 6 attack on the Capitol and for voting to certify the 2020 presidential election results.

One group supporting Howard, Drain the DC Swamp PAC, spent more than $520,000 on campaign mail, ads, and text and phone messages, according to data from the Federal Election Commission.

“This victory makes one thing clear: South Dakota Republicans decide their elections, not out-of-state interest groups,” Johnson said in a statement. “South Dakotans want a principled conservative that gets things done — and that’s what I deliver.”

In California, Representatives David Valadao and Young Kim, two House Republicans running in districts that President Biden carried in 2020, remain in limbo, as the state continues to count votes.

All candidates in California run on the same ballot — regardless of party affiliation — and the top two compete in the November general election.

In the 22nd District, the Central Valley seat that Valadao is running to represent, he and Chris Mathys, a Trump-inspired Republican, are still competing for the second spot behind Rudy Salas, the only Democrat in the running, who has clinched a place on the ballot in November. Valadao holds an edge over Mathys, but only about a third of the vote was in as of early Wednesday evening.

In California’s 40th District, in Orange County, we have even less information. With just over 60 percent of the vote reported, Asif Mahmood, a Democrat, and Kim are currently in the top two, but no candidate has clinched advancement. Greg Raths, a retired Marine fighter pilot who unsuccessfully sought Donald Trump’s endorsement, is hovering in third place.

In the Los Angeles mayor’s race, however, we have clarity. Rick Caruso, a billionaire real estate developer and former Republican, will advance to the general election alongside Representative Karen Bass, a Democrat. Neither candidate has been projected to surpass 50 percent of the vote, which would have allowed the winner to capture the mayoralty outright.

— Blake & Leah

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