September 22nd, 2014

When weighed as part of the overall effort last legislative session, it is not intellectually honest to claim that the effects of Measure #4 are unintended.

As the November 4th, 2014 General Election approaches and people realize that they will have to deal with eight – Yes, 8 – initiated measures on the statewide ballot, there is one that sticks out more than the rest as far as being a major legislative power grab.

To understand this power grab, it is important to once again review all the way the legislature tried to make it tougher for citizens to use the initiated measure process.

(Measure #1, which passed in the June election is not described below, but our analysis of that measure is available here.)

SCR 4006

First up was the ultimate goal of the 2013 legislative session, which was to grant the legislature a new veto power over the vote of the people. Senate Concurrent Resolution 4006 sought to create a legislative review mechanism that said “if the public votes for a measure that costs more than $40 million, it must also get at least 40% support in the legislature to become a law”. This essentially gave the legislature a veto over the people with 61% of the legislature. The Senate passed the bill 28 to 19 with five Republicans Senators voting NO (Miller, Sitte, Poolman, Carlisle, Flakoll). Luckily, the House killed the idea overwhelmingly 82 against to 11 (with only Republicans supporting it).

HCR 3005

The second approach was House Concurrent Resolution 3005 which would have required that would have required that not only signature collectors get 4% of the state’s population be required to place a constitutional measure on the ballot, it would have also required 4% of the population from each of half of the state’s counties. Fortunately, this idea never made it past the House and was defeated by a vote of 69 against to 24 with only Republicans supporting it as a small minority.

One of the strongest voices against House Concurrent Resolution 3005 was Jeff Misserling, Executive Director of the North Dakota Farm Bureau, who testified in committee that when they the farming practices protection amendment on the ballot, they would not have been able to meet the standards set by HCR 3005.

HB 1372

The third approach the legislature pursued was found in House Bill 1372 which statutorily eliminated what is called the “fix it period” which allowed the Secretary of State to allow petition circulators to fix any problems if they had time left within their 1-year collection period. Unfortunately, this measure passed overwhelmingly 88 to 3 against in the House, and 46 to 1 against in the Senate.

SB 2183

The fourth approach to make the initiated measure process tougher was Senate Bill 2183 which would have created a 3-year residency requirement to be allowed to collect signatures on a petition. This was defeated because it was blatantly unconstitutional as it created a residency requirement higher than the 30-day residency requirement to vote. While SB 2183 passed the Senate by a vote of 31 to 16 against, luckily the House defeated the bill by a vote of 83 against to 9.

What You Will Vote On

When the legislature also passed House Concurrent Resolution 3011 to prohibit the placement of appropriations into the state constitution, the goal was to attract conservative voters. While this may sound conservative, it is important to remember that from a fiscal accounting standpoint, the state law treats spending and tax cuts as appropriations that take money away from the budget. This means that attempts to constitutionally eliminate the sales tax, income tax, or property tax (as was tried in 2012) would not even be allowed to be voted on by the people. The public will have a chance to vote on this measure in November 2014 as it will show up as Measure #4.

There will be those that say “don’t worry, Measure #4 won’t be used against tax cuts” but it is important to remember that in the July 24th, 2013 edition of the Fargo Forum, House Republican Majority Leader Al Carlson all but said the intent of this law is to stop tax cuts as well as spending:

Rep. Al Carlson, R-Fargo, proposed the resolution to provide “good business management of the state’s resources.”

“People have every opportunity to bring their measures forward,” he said. “But when they have a large fiscal effect on the treasury, that should be in someway carefully handled.”

For instance, he said had the 2012 measure to abolish property taxes passed, the state would have been required to cover about $800 million in property taxes.

“We would have been in special session the next day to raise people's taxes,” he said.

Majority Leader Carlson showed his cards early on with this quote. Even if a measure does not have a direct appropriation within the measure, if it leads the legislature to make an appropriation then it won’t be allowed on the ballot.

The mountain of evidence is clear, the legislature, led primarily by Republicans (but many times Democrats went along with the efforts) simply does not like the fact that taxpayers and voters can use the initiated measure process to rein the legislature in.

Conclusions

In a constitutional republic, our elected official operate on the "consent of the governed". While many people do not think that direct democracy is always good, the one thing it is good for is setting the terms and conditions for our elected officials to operate.

When our elected officials ask us to reduce and restrain our own future ability to set the terms they operate within, it should be pretty clear that it is a bad idea to vote away our rights.

Measure #4 was sold and is being marketed as a way to stop the ballot box from being used to spend taxpayer money, but if it restricts the ability for taxpayers to permanently reduce their tax burden it's not worth the trade.

We should not create obstacles that prevent taxpayers from setting the revenue terms under which the legislature operates.

-Dustin Gawrylow, Managing Director

North Dakota Watchdog Network