Ballot question committee SD Voice and Aberdeen pro-democracy activist Cory Allen Heidelberger have filed their response to the state’s arguments in their lawsuit challenging the constitutionality of South Dakota’s impending ban on out-of-state contributions to ballot question campaigns. Rapid City Jim Leach’s legal prose is reasonably accessible and includes some fine turns of phrase:
The state is trying to minimize the scope of the impending restrictions as merely “contribution limits” to lure the court into applying a less strict standard of review. This legal distinction between “strict scrutiny” and “rigorous standard of review” matters, because if the state can convince the court to accept the latter, less stringent standard, the state doesn’t have to work has hard to justify infringing on First Amendment rights. The plaintiffs respond [p. 4] that SDCL 12-27-18.2 imposes not “contribution limits” but a “total ban on ballot question contributions—and thereby on political speech—[that] lies not at the outskirts of the First Amendment, but at its core.” The plaintiffs argue that this out-of-state money ban is worse than the corporate-money ban that failed judicial scrutiny in Citizens United:
Citizens United applied strict scrutiny to a ban on money used by a corporation to promote and distribute a film about a candidate within 30 days of a primary election. This case is worse: it involves a ban on money used by anyone within any time period before an election on a statewide ballot question, unless the contributor happens to fall within one of three favored groups. So the Citizens United strict scrutiny standard applies [Plaintiffs’ Reply memorandum in Support of Motion for Preliminary Injunction, SD Voice v. Noem, #1:19-cv-01003-CBK, 2019.04.26, pp. 4–5].
The plaintiffs also rebut the state’s assertion that banning out-of-state contributions serves the state’s interest in “an informed public.” This ban on contributions from my uncle in Arizona impairs that interest because “it restricts money that is used to buy speech that can full inform the public.” South Dakota law already tells voters where campaign contributions come from, so if the state’s interest lies in ensuring that voters know who is speaking, it already has narrowly tailored solutions to provide that information without infringing on the First Amendment rights of speakers.
The plaintiffs also spotlight for the court the state’s hypocrisy in claiming its interest in resisting out-of-state participation in South Dakota’s speech marketplace:
The lack of a legitimate state interest is proven by the State having imposed this restriction only on ballot question committees. The State praises the virtues of South Dakotans living under laws decided using only South Dakota money, calling this “protecting its democratic self-government from those who cannot vote on state ballot questions.” But the State has not attempted to restrict massive campaign contributions from out-of-state people and entities to candidates for election to any political office. It has not attempted to prohibit state lawmakers from taking money from out-of-state think tanks and then introducing and advocating for their one-size-fits-all model legislation.
Out of the entire political process, IM 24 affects only ballot question
committees. IM 24 can only be payback because South Dakota voters chose to adopt a law or two that the powers-that-be did not like. The most likely candidate is not the State’s punching bag, Marsy’s Law, but the ethics-reform legislation Initiated Measure 22, enacted in the 2016 election then promptly overturned by the Legislature in 2017. If the State truly were attempting to protect its “democratic self-government” from people who cannot vote in its elections, it would have extended the ban on out-of-state contributions to all parts of the political process in South Dakota [Plaintiffs’ Reply, 2019.04.26, pp. 6–7].
The plaintiffs also deftly dispose of the state’s curious argument that banning political contributions from American citizens of other states is the same as banning political contributions from foreign nationals. “Money from Minneapolis is different [from] money from Moscow.”
That one sentence should be enough to dispose of that argument, but we suspend our belt by killing the state’s contention with its own authority, Justice Brett Kavanaugh:
The case the State primarily relies on, Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d 565 U.S. 1104, actually is the dagger to the heart of its own argument. Justice (then-Circuit Judge) Brett Kavanaugh, writing for a three-judge court, explained why election money moving between states is fundamentally different than election money from foreign citizens, even those who are temporarily in the United States:
Plaintiffs also point out that many groups of people who are not entitled to vote may nonetheless make contributions and expenditures related to elections—for example, minors, American corporations, and citizens of states or municipalities other than the state or municipality of the elective office. But minors, American corporations, and citizens of other states and municipalities are all members of the American political community. By contrast, the Supreme Court has said that ‘[a]liens are by definition those outside of this community.’ Cabell, 454 U.S. at 439-40. The compelling interest that justifies Congress in restraining foreign nationals’ participation in American elections—namely, preventing foreign influence over the U.S. Government—does not apply equally to and citizens of other states and municipalities. It is long established that the government’s legislative and regulatory prerogatives are at their apex in matters pertaining to alienage. [citations omitted] It is hardly surprising, therefore, that a law that is justified as applied to aliens may not be justified as applied to citizens of the United States, or entities made up of such citizens. Thus, the fact that those other non-voting groups of U.S. citizens are free to contribute and make expenditures does not mean that foreign nationals are similar entitled.
The plaintiffs note that another key “authority” the state cites, a law student’s article in a law review journal, actually agrees with the plaintiffs:
Finally, the State quotes a law review article asserting that out-of-state spending may “drown out” arguments from in-state residents. Doc. 19 at 7. But as the title of the article itself says, it advocates increased disclosure—not a ban on out-of-state speech—as a remedy. The article recognizes that the First Amendment protects out-of-state speech in state elections: “As Justice Kennedy explained in Citizens United, ‘it is our law and our tradition that more speech, not less, is the governing rule.’ [558 U.S. at 361] This logic—that valuable speech is protected regardless of its source—suggests that future attempts to prohibit nonresidents from spending in state and local elections would likely be struck down as violating the First Amendment.” Tyler S. Roberts, Enhanced Disclosure as a Response to Increasing Out-of-State Spending in State and Local Elections, 50 Colum J.L. & Soc. Probs. 137, 174 (2016) [Plaintiffs Reply, 2019.04.26, pp. 12–13]
The plaintiffs note that the state’s effort to pit plaintiff Heidelberger against his own case misses the Constitutional mark:
The State describes Cory Heidelberger’s opposition to Marsy’s Law. So what? Heidelberger exercised his First Amendment right to speak out against a proposed law. He wrote that Marsy’s Law was wrong—not that its proponent had no right to use his money to argue for it. In stark contrast, IM 24 completely and permanently muzzles every out-of-state citizen’s right to contribute money, and thereby speak, for or against South Dakota ballot questions [Plaintiffs’ Reply, p. 10].
The plaintiffs’ reply covers the other bases of the argument—Equal Protection Clause, Dormant Commerce Clause, standing—but the above points make clear that the core of this case is to avoid the Balkanization of America. Constitutional rights apply to every American, regardless of which state they hang their hats in. South Dakota can’t erect gates on I-90 and tell Minnesotans and Wyomingians that they can’t speak here any more than Governor George Wallace could have arrested Martin Luther King, Jr., for coming from Georgia to make a speech in Alabama, or than Governor Kristi Noem can fine folks from North Dakota for saying they don’t like the Keystone XL pipeline and supporting others who say the same.
Judge Charles Kornmann hears arguments on the plaintiffs’ motion for an injunction against this unconstitutional ban on out-of-state campaign contributions this Friday, May 3, at 10:30 a.m. in Aberdeen.