Last updated on 2019-11-07
I’ve said and explained on many occasions that this year’s House Bill 1094, the most egregious provisions of which are now encapsulated in SDCL 2-1-1.3–2.1.1.9, is unconstitutional. Let’s see if a judge agrees:
Today my attorney, James Leach of Rapid City, filed a complaint on behalf of ballot question committee SD Voice and me in the Northern Division of the United States District Court of South Dakota seeking to overturn the most egregious provisions of HB 1094. While we’re at it, we also tackle another bad law used to blunt the power of direct democracy, the absurdly early deadline for filing initiative petitions.
We offer five causes of action against unconstitutional action taken by the state of South Dakota to suppress the people’s right to circulate initiative and referendum petitions:
1. Discrimination Against Disfavored Speakers
HB 1094 requires circulators of ballot question petitions to register with the state, provide personally identifying information, and wear state-issued ID badges while collecting or soliciting signatures (more on that latter verb in Cause for Action #4 below). HB 1094 imposes no such burdens on candidates, candidate committees, political action committees, political parties, or even petition opponents. HB 1094 thus targets the content of speech, burdening citizens who seek to change the law but not those who favor the law as written by the Legislature.
2. Unconstitutional Burdens on the Ballot Measure Process and on the Rights of Citizens to Be Heard by Signing Ballot Measure Petitions
HB 1094 imposes enormous and indefinite paperwork requirements on petition circulators and ballot question sponsors and uses any error, no matter how small, unwitting, or unintentional, to throw out the signatures of potentially thousands of honest voters who want a chance to debate and vote on an important issue. Any compelling interest the state may claim in ensuring the integrity of the petition process is already met by statutes already in force (e.g., SDCL 2-1-10, SDCL 32-3-19) before HB 1094. The circulator registry and badge requirement thus serves solely as unnecessary and unjustified prior restraint of petitioners’ speech.
3. Unconstitutional Burdens on the Ballot Measure Process and on the Rights of Circulators by Public Directory of Petition Circulators
Forcing circulators to submit their personal information to a public registry prior to circulating any petition subjects them to harassment from ballot measure opponents. In 2015, well-funded opponents of a proposed 36% rate cap on payday loans harassed petition sponsor Steve Hildebrand at his place of business. HB 1094’s circulator registry makes it possible for opponents to harass circulators even before they hit the streets with petitions. Requiring petitioners to wear an ID badge and show their state ID number on every petition sheet only exposes them to more harassment. The potential for such harassment and suppression of speech led the United States Supreme Court to overturn a Colorado requirement that petition circulators wear name badges; HB 1094 creates an even greater risk of harassment of circulators.
4. Unconstitutional Restriction of Speech of Non-Circulators Who “Solicit Petition Signatures”
HB 1094 actually forces two kinds of people to register as circulators and wear ID badges: anyone “who circulates, for pay or as a volunteer, petitions or solicits petition signatures from members of the public for the purpose of placing ballot measures on any statewide election ballot.” Circulating petitions—going around to collect signatures—is one thing; “soliciting petition signatures from members of the public” is something else:
77. The “solicits petition signatures” must mean anyone who, although no a petition circulator, asks, advises, or encourages people to sign a petition. This would include Heidelberger’s blog, a newspaper columnist, a person interviewed on radio, an advocacy group that encourages people to sign a petition, anyone who writes a letter to the editor of a newspaper, anyone who comments online in response to a newspaper story, and anyone who posts or respond to a comment on Facebook, Twitter, or other social media.
78. Anyone seeking to do any of these things would need to register as a “petition circulator”—a patently unconstitutional prior and illegitimate restraint on speech, better suited to George Orwell’s 1984 or Aldous Huxley’s Brave New World than to the United States of America.
79. SDCL 2-1-1.9 provides: “A person is guilty of a Class 2 misdemeanor if the person acts as a petition circulator without wearing a badge issued under § 2-1-1.8.”
80. So by in any manner asking, advising, suggesting, or encouraging someone to sign a petition, a person who does not actually circulate petitions, and who has not registered and obtained a badge, commits a crime [James Leach, attorney for plaintiffs, Complaint, SD Voice and Cory Heidelberger v. Governor Kristi Noem, Attorney General Jason Ravnsborg, and Secretary of State Steve Barnett*, Case No. 1:19-cv-01017-CBK, filed 2019.07.29].
And again, HB 1094 discriminates against content by requiring citizens to register and wear badges to encourage petition signing but imposing no such burdens on people and parties who discourage the signing of petitions. These restrictions on disfavored speech violate the First Amendment.
5. Discriminatory and Unduly Burdensome One-Year Requirement for Filing Initiative Petitions with Secretary of State
Our Fifth Cause of Action, the one-year deadline for submission of initiative petitions, does not come from 2019 HB 1094. The initiative petition submission deadline used to be in SDCL 2-1-2, which was replaced and repealed by 2012 Senate Bill 70. 2006 Senate Bill 78 changed the deadline from the first Tuesday in May to the first Tuesday in April. It was changed to one year prior to the election by 2009 House Bill 1184.
This 12-month-early submission requirement denies citizens the chance to initiate measures in response to the Legislature’s action or inaction during an election year. Requiring initiative sponsors to submit their petitions twelve months before the election thus burdens “core political speech” (again, see Buckley v. Am Const. Law Fund, 1999) as surely as the state’s erstwhile requirement that new parties file their formation petitions seven months before the election (I say erstwhile because the state lost that lawsuit, too).
Plaintiffs seek a permanent injunction against the enforcement of all of these unconstitutional laws. Note that the petition deadline is in effect now; the provisions of HB 1094 are slated to take effect July 1, 2020. We’d also like the state to pay us for the trouble of explaining the unconstitutionality of its laws to them and protecting democracy from this governmental overreach.
Once more up to the bench—let’s see what you’ve got this time, Mr. Attorney General.
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*We’ll need to distinguish this SD Voice v. Noem et al. from the case with the same players in which we overturned Mark Mickelson’s out-of-state money ban in May.
3 cheers for Cory/SD Voice.
Hip, hip, hooray!
Hip, hip, hooray!
Hip, hip, HOORAY!!!!!!
👏👏👏👏👏👏👏👏👏👏👂
Boo. Boo to the out-of-state big-dark-money interests that pay people to foist henious and unconstitutional measures, attempted to be initiated, on the good folks of South Dakota. South Dakota does not want the interlopers running our government. Boo and hiss on the petition mongers, and I urge all to #VNOE and sign all petitions as “The Boogie Man” and then walk away.
Finally a lawsuit that will benefit the citizens of the state and not some radio host guy.
Good work, Cory.
A major slap down of the would-be totalitarians in South Dakota is what has been needed for a long, long time. I’d have lassoed numerous other statutes into this suit, but this is a good start. None of these requirements are needed, and they constitute and unconstitutional hinderance of the people’s legislative process.
I’m a bit worried about Kornmann. He does have some personal experience having his clients the target of a couple mining initiatives. One thing I did like about Kornmann, Homestake and the SD Mining Association, though, is they opposed our initiatives on what they thought were the merits, rather than try to upend our efforts through nefarious means. I recall, though, that the Mining Association thought it was too easy to get initiatives on the ballot, and lobbied for tighter requirements. I’m not sure if this was during or after Kornmann’s time as their lobbyist.
Grudz has a point, but the out-of-state (and even foreign) money is usually on the side of the people opposed to citizen participation, including by citizen initiatives. In all his caterwauling on DFP about out-of-state folks, he never mentions millions of dollars spent by those folks who support his positions. Grudz is extremely inconsistent in his caterwauling, which makes me conclude he actually is “Friend of the Out-of-State Boogie Man,” and a traitor to South Dakotans.
Grudz, your comment misses the point. This lawsuit has nothing to do the bogeymen you invoke. This lawsuit has to do with the constitutionality of law. Do you have any comment that will enlighten our readers as to the merits of the constitutional arguments presented?
The overturn of IM 24 was one slapdown for Mark Mickelson and his ilk; this suit would be a bigger victory over the SDGOP’s effort to take away our initiative and referendum rights.
We have filed in Judge Kornmann’s court again, but there’s no guarantee we’ll get him. Whatever judge we get will see Judge Kornmann’s logic from the first SD Voice case cited prominently. Kornmann’s key point was that the state has a compelling interest in protecting the right of the people to check through I&R the party that has co-opted all the usual branches of government, not restricting that right.
Donald aptly cites the lopsided caterwauling that will be the defendants’ undoing. The state’s inconsistency is clear: they don’t take any strict measures against candidate petitioners or opponents of ballot measures, just as they don’t take any action to prevent big out-of-state money from supporting their candidates. That unconsistency undermines the claims they can make to be serving some compelling state interest in integrity of elections.
I’ve always been for a middle position on circulator requirements. Circulators have an important function in the initiative/referendum process. They serve three interests: (1) the issue they are pushing forward through the ballot measure process, (2) the rights of the petition signers to have their voices heard through the ballot measure process and (3) the interests of the state to have the ballot measure process work fairly and efficiently for everyone.
It serves none of these interests to have circulators who do not gather signatures in a legal way. It also fails to serve all these interests when circulators are prevented from gathering signatures in a legal way BY STATE LAW. And that’s what HB 1094 does. It essentially chokes the ability to gather signatures through needless and arbitrary bureaucracy.
It’s transparently obvious why corrupt politicians would want to cut off citizens from providing a check to their dishonesty. The petition process is the same for candidates, yet that’s where most of the circulating errors leading to law violations have happened. I ran for school board two times, and the petitioning process for that office was not much different from collecting signatures for our mining initiatives. Yet corrupt politicians violate those laws at will. What’s good for you peons, ain’t good for the corrupt politicians, you see.
My opinion is that if the badge and registry were done in a constitutional and efficient way, it would be a tremendous idea. The bill, however, vastly overreaches and is so arbitrary and so obtuse as to violate the rights to petition of ordinary citizens. It’s a transparent attempt to end the ballot measure through bullsh*t rather than a real attempt at solving a real issue.
The harassment issue is a real one, but democracy and issue advocacy are not for cowards. You have to expect some blowback, but threats and intimidation cross the line. Harassment and intimidation can be solved by a state law that protects circulators and signers of petitions in the manner state law protects voters.
Awesome. This is HUGE. Very nice arguments appealing to the Constitution. You have my support, obviously.
Having more time to circulate and organize is an impossible non-arbitrary assessment and therefore any requirement on timeline for the submission of signatures for the ballot should be unconstitutional in the same way.
An initiative or referendum should get on the ballot of the election year in which the signature petition process is completed. This would allow for more perfect validation of signatures, and it doesn’t matter whether it takes 2 months or 10 years since the state maintains records of registered voters over time.
Thank you for fighting this fight, Cory.
In the future I hope you’ll join me in my efforts to create a more viable interface to the signature gathering process moving forward that obviates any moves like this the state should make in the future.
Sincerely,
John Dale
CC4L
Spearfish, SD 57783
John
Cory asks of grudznuthin: “Do you have any comment that will enlighten our readers as to the merits of the constitutional arguments presented?”
Seriously? After 15 years of grudznuthin’s aimless attempted cutenesses, you ask for a comment that will enlighten someone?
Shad Olson, at least, provides SOME entertainment. And actually less annoyance.
Nice!
Cory – Thanks for doing this. I called the court and it sounds like this case was assigned to Kornmann. Any idea when the hearing will be?
Thanks for your support, Ned! We have no idea when the hearing will be. State has to file its response first, and we’ll respond, and there may be other motions, and then the judge will decide when he wants us to come talk to him in court.