South Dakota Vote by Secret Ballot, Amendment K (2010)
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The proposed measure called for protecting the right to secret ballots in federal, state, and union representation elections.
Supporters initially hoped to qualify the proposed measure via citizen initiative for the November 2010 ballot in South Dakota, however in September 2009 supporters announced they dropped their petition efforts. The measure was later picked up the state legislature and on February 10, 2010 the South Dakota State Senate approved the measure with a vote of 22-13. The House approved the measure on March 2 with a 44-23 vote; placing it on the 2010 ballot.
On January 14 officials of the National Labor Relations Board said the measure, along with similar measures in Arizona, South Carolina and Utah, is unconstitutional and that the U.S. plans to invalidate the laws. Specifically, officials argue that the approved measures conflict with federal law and argue the case based on the Supremacy Clause of the United States Constitution.
The current National Labor Relations Act can be read here.
The National Labor Relations Board stated on April 22, 2011 that it will file lawsuits against Arizona and South Dakota over the 2010 voter-approved state constitutional amendments. The NLRB did not file anything at that time, but did plan to do so soon after their announcement. The lawsuit was officially filed against Arizona on May 6, 2011, with South Dakota to follow soon.
Legal challenges will not be filed against Utah and South Carolina yet, if at all, according to the agency's acting general counsel, in order "to conserve limited federal and state agency resources and taxpayer funds."
After facing the legal threats in January, the four attorneys general in South Carolina, Utah, Arizona, and South Dakota, entered into negotiations with the NLRB over the secret ballot initiatives. This occurred after the AG's wrote a letter on January 27, 2011 to the agency saying that they would "vigorously defend" the constitutional changes. However, these negotiations broke down during March 2011 after the AGs declined to sign confidentiality agreements.
NLRB lawsuit legislation
During the week of June 1, 2011, legislation was introduced by U.S. Representative Jason Chaffetz (R-Utah) that aimed to stop the ability of the NLRB from suing states. The bill, HR 2118, specifically states that NLRB can sue individuals and companies, but cannot sue states challenging laws that they say conflict with the NLRA. According to Chaffetz: "H.R. 2118 ensures that states that choose to have pro-growth, right-to-work policies will not be intimidated and threatened by the NLRB. Deciding whether or not a state action violates federal law should be made by the DOJ, not a board of union friendly, politically motivated appointees."
- See also: 2010 ballot measure election results
|Amendment K (Vote by Secret Ballot)|
Source: South Dakota Secretary of State. Results were certified by the Secretary of State on November 9, 2010.
Text of measure
An Amendment to Article VI of the South Dakota Constitution relating to the right of individuals to vote by secret ballot.
The proposed amendment to the Constitution would guarantee a right to vote by secret ballot to prevent others from knowing how a person voted. This right would apply to elections of public officers, adoption of initiated or referred measures, and elections to designate or authorize employee representation, such as elections concerning unions.
| Text of Section 28:
The rights of individuals to vote by secret ballot is fundamental. If any state or federal law requires or permits an election for public office, for any initiative or referendum, or for any designation or authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed.
In support of Amendment K was the South Dakota Chamber of Commerce, along with other local business associations. The measure was sponsored by Senator David Knudson. "The whole concept behind secret ballots is to avoid any possibility of intimidation or threat. I think that's very important in our system to preserve that secret ballot right. I think it's not anti-union. It's pro-worker," said Knudson.
Other organizations that made up the Yes on K coalition included:
- South Dakota Chamber of Commerce and Industry
- South Dakota Retailers Association
- South Dakota Municipal League
- Sioux Falls Area Chamber of Commerce
- Associated General Contractors of South Dakota – Highway/ Heavy Construction
- Associated General Contractors of South Dakota – Building Chapter
- South Dakota Grain and Feed Association
- The South Dakota Agri-Business Association
- South Dakota Electric Utilities Association
- South Dakota Association of Cooperatives
- South Dakota Innkeepers Association
- Huron Chamber of Commerce
- Huron Development Corporation
- Brookings Chamber of Commerce
- Brookings Economic Development Association
- Dakota Valley Business Council
- Aberdeen Area Chamber of Commerce
The main campaign committee in opposition to Amendment K was Vote No! on Amendment K. Mark Anderson, president of the South Dakota State Federation of Labor said, "The right to a secret ballot is essential to the democratic process in America. Our Constitution already guarantees South Dakota voters a secret ballot under Article 7 – Section 3" and added that "Calling Amendment K a ‘secret ballot' amendment is simply false advertising."
Tactics and strategies
Media editorial positions
- The Daily Republic (Mitchell) supported Amendment K. In an editorial, the board said, "We don’t much believe in the merit of unions in South Dakota and worry about their impact on this state’s business-friendly climate. We also believe that any election that isn’t conducted by secret ballot is not on the level. We will vote in favor of Amendment K on Nov. 2."
- The Madison Daily Leader supported Amendment K. In an column written by the newspaper's publisher, it argued that a Yes vote for the amendment will make the right to vote by secret ballot clearly written in the state constitution.
- The Rapid City Journal supported Amendment K. The editorial board of one of South Dakota's largest newspapers felt that it is important to protect the right to vote by secret ballot in union elections. The Journal's editorial board argued that a Yes vote for Amendment K would clearly affirm the right to vote by secret ballot in South Dakota.
- The Argus-Leader (Sioux Falls) opposed Amendment K. The editorial board of one of the state's largest newspapers felt that taxpayers may be on the hook if the Attorney General's office had to defend the measure in court. The editorial mentioned the possibility of a lawsuit filed by the National Labor Relations Board if the measure was approved. Also, the Argus-Leader claimed that supporters of the amendment did not justify their argument to protect a secret ballot for union elections through amending the state constitution.
- See also: 2010 ballot measure litigation
The South Dakota State Federation of Labor filed a lawsuit in May 2010 to either rewrite Amendment K's ballot summary or remove it from the ballot. "The bottom line is we would like the court to go ahead and strike the measure, or at the very least to direct the attorney general to write a better explanation," said Steven Sandven, a Sioux Falls lawyer representing the federation. Specifically the federation argued that the summary incorrectly explained the measures and did not explain that voter approval of the amendment may make the state "vulnerable to an expensive lawsuit." However, Attorney General Marty Jackley argued that it was not his job to revise what legislators had approved. He defended the summary and said the measure should appear on the ballot for voters to decide.
Ballot summary upheld
Following a court hearing in the South Dakota Sixth Judicial Circuit, Judge John Brown denied the federation's request to remove measure from the ballot. Additionally the judge upheld the South Dakota attorney general's official ballot explanation of the measure.
On July 22 the South Dakota Supreme Court unanimously upheld the ballot summary for Amendment K. According to the high court's ruling, the attorney general's summary "objectively educates the voters of its purpose and effect."
The South Dakota Federation of AFL-CIO previously argued that the summary should be amended to include the possibility of lawsuits against the state should the measure be approved by voters. The court, however, stated that the mere possibility of lawsuit did not justify the amendment of the summary. "In deciding what to state and how to state it, the attorney general is limited to 200 words. We have repeatedly held that how the attorney general says it is up to his professional discretion as attorney for the state. This court does not sit as an editorial review board," according to the opinion, written by Chief Justice David Gilbertson.
Justices added that any further constitutional challenges to Amendment K would have to wait until after the November 2 general election.
- See also: Polls, 2010 ballot measures
- A October 20-21, 2010 poll by Mason-Dixon Polling & Research for KELOLAND-TV and the Argus Leader revealed that of the 800 polled registered voters, 53% supported Amendment K, while 23% were opposed and 24% remained undecided..
|Date of Poll||Pollster||In favor||Opposed||Undecided||Number polled|
|Oct. 20-21, 2010||Mason-Dixon Polling & Research||53%||23%||24%||800|
Path to the ballot
Initially the measure was filed as an initiated state statute, however, in September 2009 supporters turned to the South Dakota Legislature to place the measure on the ballot. In order to qualify the measure for the 2010 ballot, both the Senate and the House were required to approve the legislation. On February 10, 2010 the Senate approved the measure with a vote of 22-13. On February 24, 2010 the House State Affairs Committee voted 9-4 in favor of the proposed measure. On March 2, the House approved the measure with a 44-23 vote; placing it on the 2010 ballot.
In September 2009 initiative supporters dropped their petition efforts and instead decided to pursue a different route to place the measure on the ballot. They asked the the state legislature to put it on the ballot for them. Matt Konenkamp, a spokesman for Save Our Secret Ballots South Dakota, said, "The petition drive was going very well. We saw the complications the smoking-ban people ran into, and we didn't want to spend our resources fighting something like that."
South Dakota Senate Majority Leader Dave Knudson of Sioux Falls, who sought the GOP nomination for governor, said he would introduce legislation to send to the state's voters a constitutional amendment to protect the secret ballot. 
The same initiative was filed in Arizona, Arkansas, Missouri, Nevada, and Utah. In 2010, legislation, also known as the Employee Free Choice Act, was pending before the United States Congress that would remove that requirement from federal law.
- South Dakotans say no to medical marijuana and yes to smoking ban
- South Dakota high court upholds Amendment K ballot summary
- 2010 official ballot titles set by South Dakota Attorney General
- South Dakota legislature approves secret ballot measure for 2010 ballot
- South Dakota secret ballot measure petition dropped
- Update: Secret ballot inititatives may face legal challenge
- KDLT,"Supporters and Opponents Weigh In On Amendment K," October 28, 2010
- NECN,"South Dakota ballot measures," October 25, 2010
- KPTH,"'Amendment K' An Issue In South Dakota Election," October 7, 2010
- Las Vegas Review-Journal,"November election about more than candidates," September 10, 2010
- Associated Press,"4 states to debate anti-union ballot measure as Congress stalls on 'card check'," August 12, 2010
- Dakota Voice,"South Dakota Supreme Court preserves secret ballot for the state," August 2, 2010
- State "secret ballot" amendments challenged by NLRB
- ↑ Rapid City Journal,"Secret ballot advocates stop petition drive, turn to state Legislature," September 26, 2009
- ↑ 2.0 2.1 The Daily Republic,"Senate OKs statewide vote to guarantee a secret ballot," February 12, 2010
- ↑ Associated Press,"SD measure fights federal union organizing plan," March 3, 2010
- ↑ Rapid City Journal,"Feds prepare to sue South Dakota over secret ballot amendment," January 14, 2011
- ↑ Law360.com, "NLRB To Sue SD, Ariz. Over Union Ballot Laws", April 25, 2011
- ↑ The Associated Press, "NLRB will sue Ariz., SD over union laws", April 25, 2011
- ↑ East Valley Tribune, "Federal regulators sue Arizona over union amendment", May 6, 2011
- ↑ Rapid City Journal, "Feds may sue over secret ballot vote," March 18, 2011
- ↑ The Hill, "Chaffetz seeks to end NLRB's ability to sue states", June 6, 2011
- ↑ 10.0 10.1 South Dakota Secretary of State,"Attorney General explanation - Amendment K," retrieved May 17, 2010
- ↑ South Dakota Secretary of State,"Amendment K text," retrieved May 17, 2010
- ↑ Rapid City Journal,"Unions, businesses square off on ballot measure," September 19, 2010
- ↑ Yes on K "The Vote Yes on Amendment K Coalition"
- ↑ Rapid City Journal,"Group organizes against ‘secret ballot’ amendment," September 15, 2010
- ↑ Press release by "Vote No! on Amendment K" campaign, sent September 15, 2010
- ↑ Argus Leader,"Vote No on K committee launches Web site to fight secret ballot amendment," September 16, 2010
- ↑ The Daily Republic,"Editorial: All ballots should be kept secret," October 21, 2010
- ↑ Madison Daily Leader "Amendment K guarantees what we thought we had", October 28, 2010
- ↑ Rapid City Journal "Amendment K protects workers right to secrecy", October 30, 2010
- ↑ Argus Leader "Editorial: Our call on other ballot issues", October 29, 2010
- ↑ Argus Leader,"Union group sues over ballot measure," May 26, 2010
- ↑ Associated Press,"Judge upholds secret ballot measure for SD ballot," May 26, 2010
- ↑ 23.0 23.1 Rapid City Journal,"Supreme Court upholds explanation of ballot issue," July 22, 2010
- ↑ Associated Press,"Supreme Court upholds explanation of ballot issue," July 22, 2010
- ↑ Argus Leader "Amendment on secret ballot has strong support in Argus Leader/KELO-TV poll", October 27, 2010
- ↑ Associated Press,"SD bill fighting federal union organizing advances," February 24, 2010
- ↑ Associated Press,"Bill to send union card check issue to voters passes on party line vote," March 2, 2010
- ↑ Rapid City Journal,"Secret ballot advocates stop petition drive, turn to state Legislature," September 26, 2009
- ↑ Associated Press,"2010 legislators to see secret ballot amendment", September 24, 2009
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