In a motion filed Friday, general attorney Marty Jackley and his helper Allen Dickerson from Virginia asked the U.S. District Court of South Dakota to consolidate their plaintiffs’ lawsuit to repeal the state’s looming out-of-state campaign finance ban with the “nearly identical” lawsuit I’m pressing for the same purpose. Jackley’s clients argue, as I do, that banning out-of-state citizens from contributing to South Dakota ballot question committees violates the First Amendment. Jackley’s clients seek, as I do, a permanent injunction of SDCL 12-27-18.2 before it takes effect on July 1. Jackley’s clients thus want the court to act under Rule 42 to hear their arguments and mine at the same time.
Sifting through the proposed consolidation could take time. The suits argue similar Constitutional principles—First Amendment, Equal Protection Clause, Dormant Commerce Clause—but Jackley’s arguments emphasize some different aspects, like freedom of association and viewpoint discrimination. Attorney General Jason Ravnsborg’s office thus probably can’t effectively refute Jackley’s case with the same brief they threw at mine. But who knows—maybe Team Ravnsborg won’t want to try that hard to beat their old boss Marty.
I filed my suit on March 1 in the Northern District, based in Aberdeen. Jackley filed the suit by the South Dakota newspapers, broadcasters, retailers, and Chamber of Commerce, Tom Barnett, and the Koch Brothers’ Americans for Prosperity on April 16 in the Central Division, based in Pierre. Thanks to filing early, we were able to secure a hearing on May 3 (this Friday! 10:30 a.m.! Aberdeen!), eight weeks before the ban is set to take effect. While I have no knowledge of the mechanics of consolidating federal cases, just looking at timelines, if it takes two months to go from the filing of our first complaint to first hearing, one would think it would take a similar time for the Koch/newspapers/et al. suit to move the same distance, meaning their first hearing might not happen until June 18, just 13 days before the ban kicks in.
I have no idea how this motion will play out. My lawyer tells me we get three weeks to respond, but it sounds like consolidation is the court’s decision, not ours. The theater of Marty Jackley, David Owen, Don Haggar, and me emerging from the courtroom like the Four Horsemen of the Apocalypse would make smashing blog theater… but I would really just like to see the money ban overturned as quickly as possible, to minimize the damage it is already doing to democracy and the Constitution, and so my lawyer and I can both clear this case off our desktops and get on with other tasks. If consolidation could speed that result, then bring it on. But we may spare the court even more time and trouble by holding our hearing Friday as planned and winning from the Northern Division court a ruling that kills SDCL 12-27-18.2 and moots the second lawsuit.