South Dakota Smoking Ban, Referendum 12 (2010)

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The South Dakota Smoking Ban Referendum also known as Referendum 12, was on the November 2, 2010 ballot in South Dakota as a veto referendum, where it was approved.

The referendum placed an approved expanded smoking ban that was set to begin July 1, 2009 on the statewide ballot. The smoking ban was broadened to include all restaurants, bars, package liquor stores, Deadwood casinos and video lottery establishments. The measure did not apply to tobacco shops, designated smoking rooms in hotels and cigar bars. This was an extension of the 2002 ban on smoking in workplaces and most public areas.[1][2][3][4]

A "yes" vote approved the statewide smoking ban expansion, while a "no" vote rejected the expansion.

Election results

See also: 2010 ballot measure election results
South Dakota Referendum 12 (2010)
Approveda Yes 204,160 64.37%

Election results via: South Dakota Political Almanac, South Dakota Constitutional Amendments, Initiatives and Referendums 1970-2010

Text of measure


An Act to prohibit smoking tobacco or carrying lighted tobacco products in certain places and to require certain persons to inform violators of the prohibition.[5]



The referred law broadens the State’s ban on smoking to apply to all restaurants, bars, package liquor stores, Deadwood casinos and video lottery establishments. It requires owners, managers, and operators of places where smoking is prohibited to inform violators of the smoking ban. The ban does not apply to tobacco shops, hotel rooms designated as smoking rooms, and existing cigar bars.

A vote “Yes” is for broadening the State’s ban on smoking.

A vote “No” is against the referred law.[5] [6]


The official campaign that supported Referred Law 12 was Yes on 12.[7] The South Dakota Tobacco Free Kids Network supported South Dakota's smoking ban and opposed the petition effort to qualify the measure.


  • The American Cancer Society supported the statewide smoking ban expansion because they argued that a ban should be mandatory because there was an immediate need for a preservation of public health.[8]
  • Dr. Karla Murphy, president-elect of the South Dakota State Medical Association, said, "This law is so important because of the people it affects -- people who may appear healthy now but years later will be in their doctor's office wheezing with emphysema, struggling with smoking-related heart disease or coping with lung cancer and all because of where they worked."[9]


According to late October 2010 reports, supporters raised a total of $72,917.[10][11][12]

Tactics and strategies

  • In July 2010, Erik Gailkowski, of the American Cancer Society's South Dakota chapter, said they anticipated between 2,000 and 3,000 volunteers to campaign in favor of the state's expansion of a smoking ban. However, supporters said they were unsure of how much money would be used towards funding a statewide campaign. "It depends on what our opposition does and how other campaigns are going," said Gailkowski.[13]
  • Supporters launched the Yes on 12 campaign in early September 2010 in Sioux Falls, South Dakota.[14]
    • According to Jennifer Stalley, treasurer of the group, the group planned to go door to door, put up yard signs, hand out fliers and buy ads. "We'll spend more than a half-million dollars. We fully expect to be outspent," said Stalley.[14]


The group opposing Referred Law 12 was Citizens for Individual Freedom.[7] Supporters of the petition effort and opponents of the statewide smoking ban expansion included a coalition representing bars and gambling establishments. Specifically, Deadwood gaming, the Music and Vending Association, the Licensed Beverage Dealers of South Dakota, and video lottery establishments opposed the expansion to the ban. The group said that although they supported the 2002 version of the smoking ban, they were opposed to any expansion of the ban[1]

"It's buying another year until the inevitable happens," said John Boyd, Deadwood Tobacco Company owner. "First and most importantly, I'm opposed to any legislation that limits personal freedoms." Boyd added, that he would not be surprised if the referendum is defeated.[15]


  • Referendum opponents argued that the smoking ban would not only impact the tax revenues but also gambling revenue. Pat Roberts, chairman of the Deadwood Chamber of Commerce, agreed that revenues would suffer if smoking was prohibited. "It's critical. Smoking, drinking and gaming go hand-in-hand," said Roberts.[15]
  • Citizens for Individual Freedom spokesperson Don Rose said, opponents said that Referred Law 12 infringed on the personal rights of property owners to run a business as they see fit. Rose added, "If it passes, what's next? More gun control, more different things like that? We have to be careful about how we allow things like this to go through."[9]


According to late October 2010 reports, the opposition raised a total of $153,198.46.[16][17][18]

Tactics and strategies

In July 2010, Don Rose, of the Citizens for Individual Freedom, said liquor license holders planned to focus on talking to others about the smoking ban's effects on customers.[19]

Media editorial positions

See also: Endorsements of South Dakota ballot measures, 2010


  • The Daily Republic (Mitchell) said, "Should Referred Law 12 be pushed into law? We say yes, for the sake of nonsmokers’ health and as a strong message to everyone that smoking is a deadly habit. We’ve heard the arguments from the other side, and we appreciate them...Twenty-eight states already have passed wide-reaching smoking bans that include restaurants and bars. South Dakota voters aren’t being asked to lead the way on this issue, but to simply follow along with modern, healthful thinking. We will vote in favor of Referred Law 12 on Nov. 2."[20]
  • The Madison Daily Leader supported Referred Law 12. The publisher of the newspaper wrote in a October 29, 2010 column that voter approval of Referred Law 12 would be a victory for reducing health hazards to South Dakotans from smoking-related hazards. The column also mentioned research that stated that breathing second hand smoke would increase the risk for lung cancer[21].
  • The Rapid City Journal said, "Businesses are subjected to numerous government regulations designed to protect the health and safety of workers and customers. Referred Law 12 is just one more. Smokers are now a small minority of the general population. They can smoke at home if they choose to jeopardize their own health. They have no right to jeopardize the health of others. The Rapid City Journal endorses Referred Law 12," said the editorial board.[22]

Legal challenge

  • On July 27, 2009 a South Dakota Circuit Judge placed a hold on South Dakota's expanded smoking ban until the lawsuit regarding placing the referendum on the 2010 ballot was settled.[23][24]
  • On November 12-13, 2009 Circuit Court judge Kathleen Trandahl heard the case regarding the legality of the referendum. The American Cancer Society claimed that South Dakota’s expanded smoking-ban law couldn't be referred to a public vote because it would violate the state constitution because "it is necessary for the immediate preservation of public health." If the measure was approved for the ballot, the controversy regarding the number of valid submitted signatures would be discussed in court.[25]
    • The organization, in a ruling handed down by Circuit Judge Kathleen Trandahl, was allowed to involve themselves in a lawsuit that determined whether the measure would appear on the November 2010 ballot.[8]


See also: Polls, 2010 ballot measures
  • A March 28-31 poll revealed that approximately 66% of polled registered voters planned to vote in favor of Referred Law 12, while 32% opposed the measure and 2% remained undecided. The poll was conducted by KELOLAND TV/Argus Leader and was reported to have a margin of error of plus or minus 3.5%.[28][29]
  • An October 20-21 poll by KELOLAND TV/Argus Leader revealed that an estimated 62% of polled voters supported Referred Law 12, while 35% were opposed and 3% were undecided. A total of 800 registered voters were polled. According to reports, there was an error rate of plus or minus 3.5 percent.[30]

     Position is ahead and at or over 50%     Position is ahead or tied, but under 50%

Date of Poll Pollster In favor Opposed Undecided Number polled
Mar. 28-31 KELOLAND TV/Argus Leader 66% 32% 2% 800
October 20-21 KELOLAND TV/Argus Leader 62% 35% 3% 800

Path to the ballot

See also: South Dakota signature requirements and 2010 ballot measure petition signature costs

According to South Dakota law initiated constitutional amendment petitions for the 2010 ballot were required to be submitted by November 2, 2009, after which the Legislative Office had 15 days to review the signatures and place the measure on the ballot. For 2010 initiated constitutional amendments a total of 16,776 valid signatures (5% of the 2006 vote for governor) were required to qualify the measure for the ballot.[31][32]

Although the secretary of state stated after an initial review that there were enough signatures to move the measure to the November ballot, Jennifer Stalley of the American Cancer Society, which supported the strengthened smoking ban, estimated there was a 29 percent invalid rate among the signatures on the petitions. Supporters of the smoking ban extension had until 5 p.m. on July 2, 2009 to file an affidavit challenging the petitions. Alternatively, those that opposed the referendum and suspected a miscalculation of valid signatures could take the matter to court. Allen Nord, chairman of the South Dakota Tobacco Free Kids Network, added that they too wished to further review the submitted signatures. "Because the smoke free law passed both houses of the South Dakota Legislature with strong bipartisan support and polls show the vast majority of South Dakota voters want to go smoke free, a possible 16 month delay requires careful consideration," said Nord.[2]

Signature summary

  • Number of signatures required: 16,776
  • Number of signatures filed: 25,400
  • Number of signatures said, by Secretary of State, to be invalid: 8,845 (as of July 23)
  • Invalid number of signatures: approximately 5,643 (as of December 30)
  • Final number of valid signatures (Circuit Court Judge Trandahl, December 30): 19,757

Signatures timeline

  • As of June 22, 2009 supporters of the referendum submitted approximately 25,000 signatures. And, according to the secretary of state a random 5 percent sample of the submitted signatures revealed that at least 18,320 signatures were valid; placing the referendum to the November ballot.[2]
  • On July 2, 2009 opponents of the referendum, South Dakota Tobacco-Free Kids Network, filed a challenge to the petition signatures. said that during a five-day audit of the submitted signatures they discovered that 39% of the signatures were not by valid registered voters.[33] The challenge marks not only the possible block of a controversial issue from the 2010 state ballot but also the first time a group is challenging a petition to put an issue on a statewide ballot.[34]
  • On Monday, July 6, 2009, the Secretary of State's office began to review the approximately 10,000 challenged signatures.[34]
  • On July 23, Chris Nelson said that a signature-by-signature check of the submitted signatures by his office showed that 8,845 of those submitted were invalid. As a result, the effort to qualify the measure for the ballot has fallen 221 signatures short.[35]
    • Supporters of the referendum say they will challenge Nelson's determination in court.[35]
  • On November 2, 2009, Chris Nelson ruled that following additional review of the signatures, supporters fell short 61 signatures.[36]
  • December 30, 2009: Circuit Judge Trandahl ruled that even more signatures were valid. The signature count is now 19,757 valid signatures; 2,981 more signatures than the required minimum of 16,776.[39]

Similar measures

Proposed ballot measures that were not on a ballot South Dakota Smoking Ban Alternative Amendment (2010)

See also

Suggest a link


External links

Additional reading


  1. 1.0 1.1 Argus Leader, "Petitions get OK in smoking fight," June 26,2009
  2. 2.0 2.1 2.2 The San Francisco Examiner, "Officials say SD smoking ban will go to public vote; ban supporters checking more signatures," June 25,2009
  3. South Dakota Political Almanac, "South Dakota Constitutional Amendments, Initiatives and Referendums 1970-2010," accessed August 28, 2014
  4. South Dakota Secretary of State, "Historical Election Data," accessed August 28, 2014
  5. 5.0 5.1 South Dakota Secretary of State, "2010 Ballot Question Text," accessed August 28, 2014
  6. 6.0 6.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
  7. 7.0 7.1 KSFY, "Campaign for and against smoking ban heats up," August 31, 2010 (dead link)
  8. 8.0 8.1 The Jamestown Sun, "American Cancer Society joins smoking ban lawsuit," October 6, 2009
  9. 9.0 9.1 Associated Press, "SD smoking-ban proponents cite worker health," September 1, 2010
  10. South Dakota Secretary of State, "Referred Law 12 Mid-Year report," accessed November 29, 2010
  11. South Dakota Secretary of State, "Referred Law 12 Pre-Election report," accessed November 29, 2010
  12. South Dakota Secretary of State, "Referred Law 12 Supplemental Large Contributions report," accessed November 29, 2010
  13. Associated Press, "Both sides prep for fight to expand SD smoking ban," July 11, 2010
  14. 14.0 14.1 Argus Leader, "Smoking ban campaign starts," September 1, 2010
  15. 15.0 15.1 Rapid City Journal, "Smoking ban petition gives voters a say," June 24,2009
  16. South Dakota Secretary of State, "Referred Law 12 Pre-election report," accessed November 29, 2010
  17. South Dakota Secretary of State, "Referred Law 12 Mid-year report," accessed November 29, 2010
  18. South Dakota Secretary of State, "Referred Law 12 Mid-year amendments report," accessed November 29, 2010
  19. Associated Press, "Long-standing smoking issue goes to voters," July 11, 2010
  20. The Daily Republic, "Editorial: Smoking ban is about health, not just dollars," October 22, 2010 (dead link)
  21. Madison Daily Leader, "Extension of smoking ban is appropriate for today," October 29, 2010 (timed out)
  22. Rapid City Journal, "Voters should pass smoking ban," October 27, 2010
  23. Associated Press, "Group seeks court order to hold public vote on smoking ban in South Dakota," June 27, 2009
  24. The Daily Republic, "S.D. smoking ban on hold, judge says," July 28, 2009
  25. Associated Press, "SD judge refuses secondhand smoke testimony," November 4, 2009 (dead link)
  26. Associated Press, "Public to vote on South Dakota's smoking ban law," November 21, 2009
  27. KPTH, "South Dakota Smoking Ban Goes to a Vote," accessed November 24, 2009
  28. Keloland TV, "2010 KELOLAND TV/Argus Leader City Election Poll," accessed April 7, 2010
  29. Keloland TV, "KELOLAND TV/Argus Leader Poll: Smoking Ban," April 6, 2010
  30. Argus Leader, "Smoking ban: 62% say yes in Argus Leader/KELO-TV poll," October 24, 2010
  31. South Dakota Secretary of State, "Circulating A Statewide Ballot Question Petition 2010," accessed November 24, 2009
  32. Yankton Press & Dakotan, "Our Opinion: The Smoking Ban Battle – Shaping The Debate," June 23,2009
  33. Rapid City Journal, "Supporters of S.D. smoking ban seek to stop public vote," July 2, 2009
  34. 34.0 34.1 Keloland TV, "Signature Challenge First Of Its Kind In SD," July 2, 2009
  35. 35.0 35.1 Argus Leader, "Smoking ban clears big hurdle," July 24, 2009
  36. The Daily Republic, "Second-hand testimony turned down," November 3, 2009
  37. KPTH, "South Dakota Smoking Ban Goes to a Vote," accessed November 24, 2009
  38. Associated Press, "Public to vote on South Dakota's smoking ban law," November 21, 2009
  39. The Daily Republic, "More signatures valid, judge rules," December 30, 2009