Supporters of open primaries say shifting to a top-two primary system will whittle candidates down to those who represent a majority of South Dakota voters. But opponents argue it will limit voters’ choices each November.

Amendment H, one of seven statewide questions on South Dakotans’ Nov. 5 ballot, proposes opening up future primary elections and placing all candidates, regardless of party, on a single ballot. The top two vote-getters would advance to the general election.

Currently, only registered Republicans are allowed to vote in Republican primaries. Democrats and independents can vote in Democratic primaries.

The measure would amend the state constitution to implement the change. A “yes” vote supports replacing partisan primaries with a top-two system for all state and local offices. A “no” vote opposes the initiative and keeps South Dakota’s current primary system in place.

Sioux Falls businessman and longtime Republican Joe Kirby leads South Dakota Open Primaries. He hopes the reform increases voter turnout so independents get a “meaningful vote” and candidates change primary campaigns to appeal to all voters.

Washington became the first state to adopt a top-two primary system in 2004, but wasn’t able to implement it until 2008 due to court challenges. California adopted the system in 2010 and implemented it in 2012. Nebraska uses a top-two primary system for state legislative offices, and does not list political parties because the Legislature is nonpartisan.

Both the South Dakota Republican Party and the South Dakota Democratic Party oppose the measure. Democratic Party Executive Director Dan Ahlers said the amendment would not significantly affect voter turnout or candidate moderation.

Increasing voter turnout?

Proponents of Amendment H point to the South Dakota June 2024 primary’s 17% voter turnout — the lowest in recent history — as a reason to switch to a top-two system. In a Republican-leaning state, the primary is more important to many Republican candidates than the general election, even though about half of South Dakota registered voters can’t cast their vote in Republican primaries.

Aside from this year’s primary — which included no statewide races, one Democratic legislative primary and 44 Republican legislative primary races — voter turnout in South Dakota primaries increased over the last decade.

Kirby said a top-two primary would significantly increase voter turnout because it would allow “meaningful” primaries for non-Republican South Dakota voters. 

Citing a fiscal estimate from the Legislative Research Council, Kirby said voter turnout would grow by 50,000 voters — which would have increased turnout from 17% to 25% in this year’s primary, or from 32% in 2022 to 40%.

But Ahlers said that estimate is taken out of context. The Legislative Research Council merely estimated the number of extra ballots needed for primaries, not the actual turnout.

“They always have to put a buffer number in there,” he said.

If Amendment H passes, Ahlers doesn’t expect voter turnout to increase significantly. It’s not a primary model that will draw people out to vote but rather the candidates and the issues, Ahlers said. That’s the responsibility of parties, he said, to recruit quality candidates and encourage people to vote.

Average voter turnout in Washington has been lower in some years since the adoption of open primaries, including 31% in 2014, and higher in others, including 54% in 2020. Turnout has been similarly mixed since the implementation of open primaries in California, ranging from 25% in 2014 to 48% in 2016, and never yet equaling the state’s modern, pre-open-primaries high of 58% turnout in the 2006 primary.

Michael Ritter, an assistant professor specializing in election research at Washington State University, said that “more accessible primaries” do boost primary turnout, generally. Open primary models can make voting more accessible to citizens, and it may also increase a person’s commitment to political advocacy, he said.

But, Ritter said, open primary models don’t boost turnout by 10% or more. Just by a few percentage points, or less than 5%.

“That may sound trivial, but it can be important because a lot of elections in this country are decided at the margins,” Ritter said.

Appealing to all South Dakota voters or limiting their options?

Kirby said a top-two primary system shifts away from “party control” and encourages candidates to appeal to all South Dakota voters rather than just a party.

“It’s better to empower the voters of the state,” Kirby said. “Parties will no longer be in control of elections. The voters will be.”

Ahlers said the constitutional amendment is pushed by Republicans who are “frustrated with their own party.” He said the amendment will “disenfranchise voters” because a top-two system could limit the political diversity of candidates on the general election ballot. Two Republicans could appear on the general election ballot rather than a Republican with a Democrat, Libertarian and independent.

“You hear the word ‘open’ and you think, ‘Great. An open process where everyone can participate.’ But this limits your choices. It limits the opportunity for more voices to be heard,” Ahlers said.

In California, the top-two system has motivated new kinds of political strategizing. 

Democratic U.S. Senate candidate Adam Schiff ignored his two Democratic opponents in this year’s primary and instead focused attention on Republican candidate Steve Garvey, even though Garvey has little chance at winning the general election in the Democratic-leaning state. That strategy helped Schiff maneuver Garvey into position as Schiff’s preferred general election opponent, a CalMatters columnist wrote earlier this year. Instead of appealing to moderate voters, Schiff made a partisan appeal to manufacture a relatively easy campaign for himself in the general election.

“Gamesmanship happens in politics,” Kirby countered. “That’s not at all a flaw in the open primary system.”

Republican Rep. Bethany Soye, of Sioux Falls, who opposed Amendment H during a recent debate at the Downtown Sioux Falls Rotary, said the top-two system will make it harder for independent or “grassroots” candidates to run for office because campaigning will be more expensive. They’ll run against more opponents and have a longer campaign cycle, which will “guarantee the perpetual rule of big money” in South Dakota, Soye said.

“The general election is going to be in June and there will never be another independent candidate on the ballot in November,” Soye said.

Washington’s primary came under fire this year as a “bloody mess” because the ballot had an overwhelming number of candidates, wrote a Seattle Times columnist. There were 28 candidates listed on the ballot for governor alone.

There is no limit in Amendment H on the number of candidates that can run in a primary. Kirby said the South Dakota Legislature can address that concern if the measure passes, such as setting the number of petition signatures needed to file a candidacy at a higher level to discourage frivolous campaigns. 

The potential for a legal challenge

The attorney general’s explanation of Amendment H notes that the amendment might be challenged in court, but doesn’t say why. The office did not respond to questions from South Dakota Searchlight.

Ahlers dislikes another portion of the amendment’s language, which says “a candidate may select the name of a political party to be listed next to the candidate’s name on the primary ballot.” Ahlers said that provision “encourages voter deception” by allowing candidates to identify with a party even if they aren’t registered with that party.

While candidates can already register under one party and then switch registration once elected, Ahlers said that’s harder to pull off under the current system.

Kirby said if someone is “misrepresenting themselves,” political parties and the media will hold them accountable. He said it hasn’t been an issue in other states.

SIOUX FALLS, S.D. (Dakota News Now) — The election is just 26 days away, and the rhetoric is heating up around Measure 29, which would legalize recreational marijuana in South Dakota.

A similar measure passed in 2020 before being struck down by the state’s Supreme Court a year later. Then, another similar measure failed in 2022.

Now, one side is calling out the other for the claims made in a commercial.

Matthew Schweich is the president of South Dakotans for Better Marijuana Laws, leading the charge for Measure 29.

In both a press release and a Wednesday morning press conference he called, Schweich claimed an ad produced and funded by Protecting South Dakota Kids is “demonstrably false and deceptive” — and called on the opposing group to take down the ad.

“The intent of this ad is obvious. It is intended to deceive South Dakota voters into thinking Measure 29 legalizes or decriminalizes hard drugs,” Schweich said.

In the commercial, both the announcer and the text on the screen state that Measure 29 “wouldn’t just legalize marijuana.“ The next statement the announcer makes is that the measure would “cultivate a whole new generation of meth, fentanyl and opioid abusers.” But, the words on the screen only read “Measure 29, Meth, Fentanyl and Opioid Abusers.”

Schweich said that many voters who see this ad in digital form on Facebook or streaming platforms like Hulu-Plus will see them without sound, and will only see this — “Measure 29, Meth, Fentanyl, Opioid Abusers.”

When consumed on those platforms, Schweich called the ad “digital misinformation,” but when aired on over-the-air television stations, he called it a violation of FCC law and called for any local TV station that airs to stop doing so.

“We don’t allow banks or car dealerships or other businesses to run ads that are patently false or deceptive,” Schweich said. “Why should the rules be any different for a political campaign?”

Schweich called for Protecting South Dakota Kids to pull the ad.

“I’m here to urge our opponents to hold themselves to a very basic level of honesty,” Schweich said. “However, based on their behavior during this campaign, I do not expect them to do the right thing. They seem incapable of resisting the urge to lie to voters in order to maintain prohibition.”

The president of Protecting South Dakota Kids denied that the ad lies or is intended to deceive voters.

“To suggest that we’re unclear or that it is confusing or that it is newsworthy or a news flash to suggest that the use of marijuana, or use of any illegal drug, contributes to the further use of other substances is really a surprise to me,” Kinyon said.

When asked about the possibility that a viewer that consumes the ad without sound and sees the words “Measure 29, Meth, Fentanyl, Opioid Abusers” could draw the conclusion that Protecting South Dakota Kids is claiming that Measure 29 would also legalize those other drugs, Kinyon said this:

“We didn’t put it on a soundless medium,” said Jim Kinyon. “We used it on a medium that has sound and we can’t be responsible for everything that can happen with the information we share.”

Kinyon said that Schweich is “stretching” in claiming the ad is intentionally misleading voters and that he found it “entertaining that the marijuana industry is fact-checking us, when they’re making claims out there like legalizing marijuana will lead to $100 million in tax revenue.”

Schweich said that South Dakotans for Better Marijuana Laws has never made the specific claim that the passing of Measure 29 would directly generate new tax revenue, but that the group has pointed out that if the measure passes, the legislature is likely to pass an implementation bill that will generate revenue.

But Schweich said he “wouldn’t dare” claim a specific amount, like $100 million.

“You’re asking me if I feel okay about being fact-checked by a drug pusher,” Kinyon said. “I can only say to you I am sorry he doesn’t like our ad, and I understand he would prefer to live in the darkness.”

Kinyon called Schweich’s press conference and the claims that the Protecting South Dakota Kids ad is false and deceiving “an excuse to have free media.”

“We’ve been at this for two years now,” Kinyon said. “Every time we put out an ad, I guarantee you he’s going to call a press conference.

“Matthew is a very slick attorney. He’s been doing this for decades — passing the use of marijuana from one state to another. I’m sure he’s pretty frustrated because this is the fifth time that this has been pushed on the state of South Dakota. I don’t know what part of ‘no’ that industry won’t listen to.”

South Dakota did have recreational marijuana measures on the ballots in 2006, 2010, 2020, and 2022, with amendments failing at the polls each time except 2020, when it passed with 54 percent of voters approving.

About a year later, led by the urging of Gov. Kristi Noem, the South Dakota State Supreme Court upheld a lower-court decision and overturned the vote, saying the wording of the measure was unconstitutional.

Two years later, a similar amendment failed, with 53 percent of voters saying “no.” On Wednesday, Schweich repeated what he told Dakota News Now last May — that a higher voter turnout in a presidential election year will flip the result, as it did in 2020.

In that May DNN story, Kinyon mentioned, as most anti-recreational marijuana activists have, that other states that have recreational cannabis have higher youth usage rates and higher crime rates as a result. He mentioned that again in his Wednesday interview with Dakota News Now.

“I don’t want to be Denver,” Kinyon said. “I don’t want to be Chicago. I don’t want to be San Francisco. I don’t want to be Washington, D.C. I prefer our parks the way we have them. They’ll promise you they’ll line the streets with gold. In reality, what they do is line it with tent cities. That’s not what South Dakotans stand for.”

In May’s interview with DNN, Schweich called Protecting South Dakota Kids’ messaging “sensationalist, over-the-top, doom-and-gloom tactics” and today called it “fear-mongering.”

Wednesday at the press conference, Schweich distributed a nine-page report called “IM-29 Myth Busters: Challenging the Dishonesty and Deception of South Dakota Prohibitionists.”

The report counters some of Protecting South Dakota Kids’ claims about what recreational marijuana leads to in states that have it. Schweich mentioned how PSDK continues to mention an increase in marijuana use by people aged 12 and over, but cited a Colorado Department of Health study that showed a downward trajectory of use in youths, which is part of the SDBML report.

“So, they cherry-pick and intentionally do stuff,” Schweich said. “Unfortunately, they’ve gotten looser and looser with the facts over the years.”

“Fear works in politics, unfortunately, and that’s their strategy. Our strategy is to point out that this policy is working in every other state that has adopted. In 24 states that have adopted it, not a single state, not one, has repealed the policy,” Schweich continued.

To review, both sides are claiming the other side is making false claims. Both sides see a bigger picture beyond Schweich’s contesting of this ad.

“He’s complaining about a group setting off a firework when he’s dropping a bomb. A huge bomb,“ said Ed Moses, a former Missouri highway patrol officer and volunteer for the Protecting South Dakota Kids campaign who joined Kinyon’s interview with Dakota News Now.

Kinyon called Moses a ”national expert” on what recreational marijuana leads to.

Asked what he meant by Schweich dropping a “bomb,” Moses brought up what he said he has seen in Missouri since that state’s legalization of recreational cannabis in 2022.

“We’re having more people killed on the highway from people under the influence of marijuana than alcohol,” Moses said.

A report from the Missouri Coalition of Roadway Safety on impaired driving in 2023 found that “drug-impaired driving contributed to 7% of all 2023 Missouri traffic fatalities,” but that report did not specify what percentage of deaths were alcohol-related, nor what percentage were marijuana-related.

Another report about 2023 highway deaths specifically in southwest Missouri counties said “The latest stats do not include driving impaired related to marijuana use because it’s hard to make that determination at the scene of a crash with no equivalent of a breathalyzer test.”

The South Dakotans for Better Marijuana Laws “IM-29 Myth Busters” report noted that “driving under the influence of cannabis remains illegal under Measure 29.”

But the bigger picture for Schweich on Wednesday, he said, went well beyond the effects of recreational marijuana.

“As a state, as a country, we cannot just give up on the idea of facts in our democracy, in our political system,” Schweich said. “It seems we’re on a downward spiral right now, and I just think we have to hold ourselves to a certain standard.”

Copyright 2024 Dakota News Now. All rights reserved.

FORT YATES, N.D. – The North Dakota Secretary of State’s Office addressed efforts to make voting more accessible for tribal members during a meeting Wednesday on the Standing Rock Sioux Reservation.

Secretary of State Michael Howe said his office has a grant to assist tribes with the administrative costs of issuing IDs for voting purposes.

The pot of money for each biennium is $25,000, with each of the five federally-recognized tribes having access to up to $5,000.

This is the second budget cycle the grant has been available, Howe said at a meeting of the Legislature’s Tribal and State Relations Committee at Prairie Knights Casino. During the 2021-2023 biennium, none of the tribes used the money, Howe said. The funding is still available for this biennium.

“In the coming weeks ahead, if a tribe would like to use that $5,000 grant to help the administration of issuing IDs, that money is available to you,” Howe said.

The funding is the result of federal lawsuits that were settled between tribes and the state. Two separate lawsuits from North Dakota tribes challenged the state’s requirement that voters have IDs with street addresses. Addresses on many rural reservations are post office boxes.

A settlement of those lawsuits included reimbursing tribes for the cost of issuing addresses and IDs. The settlement also gave tribes the ability to quickly verify “set-aside” ballots.

The Secretary of State’s Office is looking for contacts from tribal governments to help verify set-aside ballots. Under North Dakota law, a voter cannot be turned away if they show up without valid identification. 

The ballot won’t be counted until their qualifications are verified. They have 13 days to do so after the election.

“What the tribal nations can do is provide a contact, and then the day after Election Day, our office will send that contact a list of individuals who have voted a set-aside ballot who might be residing on a reservation and that tribal nation can then verify the qualifications of that voter,” said Erika White, elections director for the Secretary of State’s Office. 

People who want to serve as contacts should reach out to White at the Secretary of State’s Office by Nov. 1 at 701-328-4146.

Valid forms of identification for voting in North Dakota include a North Dakota driver’s license; a non-driver state-issued identification card; a tribal ID or a tribal letter; and certificate from a long-term care facility.

Alice Bird Horse, a representative at-large for the Standing Rock Sioux Tribal Council, said she’s heard of incidents about poll workers turning away voters with tribal IDs. She asked Howe whether poll workers were specifically trained not to do this.

“I won’t name the specific county that it happened in, but it’s alarming to know that maybe they weren’t trained very well or educated on their duties as a poll worker,” Bird Horse said.

Howe said his office has trained all 53 county auditors about the acceptable forms of identification, who in turn train poll workers.

“We can communicate with every county to reiterate to their poll workers for the November election, nobody should be turned away,” he said.

North Dakota tribes can get help with non-driver ID cards before Election Day

Over the past few days, the Department of Transportation has visited Belcourt, Fort Yates and Fort Totten to issue non-driver IDs on the reservations.

The department is scheduled to visit the Spirit Lake Nation on Thursday at The Blue Building, 816 Third Ave. N., Fort Totten; and the Mandan, Hidatsa, and Arikara Nation on Tuesday at the Northern Lights Wellness Center, 710 East Ave., New Town.

For questions about the photo ID events, call NDDOT at 1-855-633-6835.

For more information about North Dakota voting requirements, go to the Secretary of State’s Office website, vote.ND.gov.

This story was updated to add context of lawsuit settlements related to tribal voting.