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Lloyd Omdahl, Published September 24 2012

Omdahl: History’s lesson is clear

As could be expected, some legislators want to wade into the signature fraud scandal by suggesting that the initiative and referral process be scrutinized and perhaps changed in the upcoming legislative session.

Thus far, the suggestions include making signature fraud a felony, raising the number of signatures, requiring statewide distribution of signatures, regulating payment for signatures, and “taking a look at the whole process.”

Because North Dakotans consider the initiative and referral processes sacred, the Legislature would be well advised to consider carefully and cautiously any proposals that would change the system.

When the progressive movement was sweeping the country in the early 1900s, public opinion forced the Legislature into passing the constitutional provisions establishing the initiative and referendum. But the Legislature did it grudgingly and has despised the system since.

It made the provisions so difficult that the process was virtually impossible to use. Adopted in 1914, it provided that the initiative and referral require signatures equal to 10 percent of the state’s population in a majority of counties. That would have been around 58,000 signatures at that time.

Initiated measures for statutes were to be submitted to the Legislature before going on the ballot.

Initiatives amending the Constitution required signatures equal to 25 percent of the population (174,000) from a majority of counties. If approved by the people in an election, the proposal would then go to the Legislature for approval. If the Legislature disapproved, it would go back to the people for a second vote.

But the people were not to be denied. Somehow, they vaulted the high barriers with their own initiated measure that set the signature requirements at 7,000 for referring acts of the Legislature, 10,000 for initiatives and 20,000 for constitutional amendments.

Legislative animosity toward the initiative and referendum persisted through the decades. It proposed raising the number of signatures six times – 1932, 1936, 1940, 1942, 1958 and 1966. The people voted down the proposed change every time.

The voters finally approved a modest change in 1978 when they agreed to change from fixed numbers to the percentage of the population requirements we have today.

As we note the consistent defeat of proposals to increase the signatures, history is warning the Legislature that any proposal to raise the signature requirements would be dead on arrival.

Changing the penalty for signature fraud from a misdemeanor to a felony may seem worthy of consideration. As a misdemeanor, the penalty is now one year in prison and a $2,000 fine. But would a greater penalty be used to deter fraud?

The only other case of signature fraud in our history occurred in the 1960s, when paid signature gatherers went to the phone books and listed not only people but businesses, organizations, schools and any other entities they came across. The fraud was obvious and the lead perpetrator spent eight months in prison.

If the justice system could bring itself to applying the misdemeanor penalties, it would be enough to discourage abuse for another 50 years. However, if the current case is treated as a “boys will be boys” shenanigan, the penalties for a felony would be no more helpful than the penalties for a misdemeanor.

The real culprit is payment for collecting signatures – the root cause of the current fraud case. It is a difficult practice to regulate, given the constitutional protections involved. However, reigning in the funding for signature collection is the one suggestion worth pursuing.


Omdahl is a former North Dakota lieutenant governor and a retired University of North Dakota political science teacher. Email ndmatters@q.com