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Plaintiffs Respond in Lawsuit Against South Dakota’s Out-of-State Money Ban

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.

Bluman at 290 (emphasis added) [Plaintiffs Reply, 2019.04.26, pp. 8–9]

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.

16 Comments

  1. Donald Pay 2019-04-28

    What some might call Balkanization might be otherwise considered as exercising appropriate 10th Amendment-assured state sovereignty over a process that state citizens established year ago, and which is part of the culture and custom of the state. That process, the initiative and referendum, has been eroded by the corporate and foreign controlled Legislature over the years, because that process limits legislative corruptive used of money (false speech) on both the monied (corporate and foreign interests) and the corrupt Legislature. I & R is a corruption control measure meant to be used primarily by state citizens only to correct and address Legislative corruption. Money is not speech. Speech is speech.

  2. grudznick 2019-04-28

    Actually, Mr. H, I do believe that Wyomingites do have their speech here curtailed through a mass-muting imposed through social custom and pressures, at most every eatery and thirst quenching establishment in the Black Hills. No gates in I-90 are needed to do so, and most Wyomingites visit by traveling other routes.

  3. bearcreekbat 2019-04-28

    Cory, I had to chuckle at your “compliment” on Leach’s writing style:

    Rapid City Jim Leach’s legal prose is reasonably accessible >/i>. . . . (italics added)

    Anyway, the argument that the State has not also restricted contributions from out state supporting or opposing candidates or other legislative matters than the initiative funding is interesting, but unlikely to go very far.

    It is my understanding that if an action is otherwise lawful, the fact that a State focuses on only one problem at a time is pretty much irrelevant. Thus, if it had been lawful for the State to extend this legislation to all the forms of outside funding described in the argument, the fact that it did not, instead only addressing one area – the initiative, does not affect the validity of its legislation.

    And unless the State acts for an unconstitutional reason, such as with the intent to suppress speech based on its content contrary to the 1st Amendment, the State’s motive for the legislation typically is not considered a relevant factor to be considered in determining the validity of legislation.

    These comments are only an observation – overall your case looks pretty promising.

  4. Donald Pay 2019-04-28

    The state is unlikely to defend this law adequately, or correctly. Why would they? State officials are corrupt, and the elite in and out of the state want it to stay that way. Ravnesborg is probably just as guilty of using out-of-state money, maybe even foreign money, to conduct his hatefests. Throw out one way to corrupt the process of the initiative still leaves a nearly infinite number of ways they can still corrupt the process. They fear the precedent, not the result of losing this lawsuit. It would spell the beginning of the end of their corruption.

    The point about the “three favored groups,” is, of course, something that I and Cory pointed when the bill was introduced. The “elitist intervenors” only now get around to using that point only after I said that Leach should purposely lose this case to get at least a toe-hold against out-of-state money corrupting the state’s initiative and referendum process, with gerrymandered districts now the rule, the only means to prevent Legislative corruption by wealthy interests. Rather than a legal problem, the three favored group loophole shows the law is a reasonable legislative first step taken to begin to address the corruption visited upon state’s by an unaccountable and completely out-of-touch federal judiciary’s money is speech delusion. It is simply a means to take a step-wise approach to correcting the legal travesty of the that righty federal judges corrupt belief that “money is speech.”

  5. Debbo 2019-04-28

    “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 state’s weak attempt to use that law student’s article in defense looks like a massive Doofus Move to me. Why would they try to use something that is diametrically opposed to their goal? Stupidity? Too lazy to do sufficient research? Ferpetessake. 🙄🙄🙄

  6. Cory Allen Heidelberger Post author | 2019-04-28

    Careful, Donald: you’re going to get Jason Ravnsborg in a bind trying to fuse his instinctive base conservative states’ rights talk with the liberal anti-corporate cry of “money is not speech!” You might need to file an amicus curiae brief to help Jason when this goes to the Supreme Court. :-)

  7. Cory Allen Heidelberger Post author | 2019-04-28

    Debbo, it could be that the state can’t find any thing better than that Roberts article. Or… it could be… a trap!

  8. Cory Allen Heidelberger Post author | 2019-04-28

    Hey now, Bear! Don’t be getting my lawyer thinking that I’m slinging snowballs at him! When I say reasonably accessible, I mean to say that the case has some legal points that even Leach’s clear courtroom language may be difficult for casual readers to make sense of.

    You make a fair observation about motive and partial problems. But may I fairly respond that the state’s motive is implicated here, in that the state must assert its motive—its compelling interest—to justify the infringement? The state’s argument depends on saying, “Our motive in passing this law is to…” and proving that the state really has good reason to act on that motive. Isn’t it reasonable for us to point to other evidence and say that the state doesn’t really seem to harbor and act on that motive in other, even more pressingly problematic situations, so their assertion of that motive in this is suspect?

  9. Cory Allen Heidelberger Post author | 2019-04-28

    Grudz, my goat remains ungot. Social custom and pressures have no bearing on the arguments presented to the court. We’re talking about action by the state, by law.

  10. leslie 2019-04-29

    Cory, are they judge shopping?

    Mucho kudos again for pushing this but reasses how your bedmates participation may dilute you cause.

    Finally, is the petition signature complication by the state showing an aerrosive pattern of malice, along with this freedom of speech issue?

    Sorry for the typo

  11. bearcreekbat 2019-04-29

    Cory, I have known your attorney for about 40 years and my best guess is that he too would chuckle, rather than be offended, by your choice of descriptive terms.

    As for your further analysis of legislative motive, we could be arguing semantics, but “motive” means something different than a state’s “interest.”

    Your comment

    “their assertion of that motive in this is suspect”

    underscores the root of the problem – the difficulty in factually determining legislative motive, absent some express declaration of motive in the actual statutory provisions.

    Motive stems from the opinions and goals of legislators. Trying to determine legislative motive in most circumstances becomes an unreliable guessing game, especially since individual legislators often publicly express significantly differemnt reasons for supporting or opposing a particular bill.

    There may well be exceptions in our jurisprudence, but more typical analysis focuses on the real world results of a law rather than the supposed motive of legislators. For example, recall the old adage that “Most of the evil in this world is done by people with good intentions.” (T.S. Elliot).

    Finally, I should point out that there is currently a case pending before the Supreme Court raising the question of whether to consider legislative motive for a state law involving nuclear energy. This quote from SCOTUSblog describes the burden faced by arguments that motive should be considered:

    . . . the court in Shady Grove Orthopedic Associates v. Allstate Insurance Co. rejected the relevance of a state legislature’s subjective intentions when it held that the Federal Rules of Civil Procedure trumped a New York law prohibiting certain kinds of class actions. The court expressed concern that not only is it difficult to pinpoint a single legislative purpose, but also that such an approach could mean that one state’s statute would be pre-empted, yet another state’s identical statute could stand. Indeed, in only a few contexts — such as equal protection and establishment clause cases — has the Supreme Court looked behind neutral statutory text to ascertain an illegitimate purpose, and even then it has been cautious, as in 1971’s Palmer v. Thompson. It would be a big step indeed to use Virginia’s legislative purpose — if it can be identified — to define the scope of the court’s pre-emption analysis.

    https://www.scotusblog.com/2018/10/argument-preview-justices-may-consider-role-of-legislative-motive-in-pre-emption-analysis/

  12. Cory Allen Heidelberger Post author | 2019-04-29

    Bear, I would agree that real-world results are easier to determine than legislative intent, motive, what have you. The determination of the latter is more complicated here, because we’re talking about an initiated measure rather than a bill passed in Pierre. We know what the sponsor, G. Mark Mickelson, wanted, but how do we determine the “legislative intent” of a couple hundred thousand voters? Instead of transcripts of committee hearings and floor debates in the Capitol, we have… what? Letters to the editor? Discussions on this blog?

    If the judge wants to talk about real-world results to determine the validity of the state’s interest and its success in narrowly tailoring a law to meet that interest, then we plaintiffs are on even firmer footing. The real world results here are that the money ban hamstrings grassroots organizers who want to challenge Legislative overreach (or underreach!) and leaving a larger proportion of the power in South Dakota lawmaking to big, rich outside lobbying interests who can send their hired guns to Pierre to lobby the Legislature and then, just in case, file their paper corporations in Pierre to allow their ongoing presence in the ballot question process. We get less speech rather than more, which Justice Kennedy tells us is the opposite of the result we should seek.

  13. bearcreekbat 2019-04-29

    Cory, that’s right – an initiated measure, I had forgotten. That makes determining motive nearly impossible.

    I look forward to learning how our district court (Judge Kormann – right?) analyzes and decides the case.

  14. Cory Allen Heidelberger Post author | 2019-04-29

    Alas, Leslie, it’s not my place to assess the impact of consolidating the cases; that decision is entirely up to the judge. It’ll simply be up to us to ensure that our voices are heard alongside the big money in the room and to make sure they don’t mess things up for us.

  15. Debbo 2019-04-29

    Speaking of out of state $, how about out of nation info and an out of nation felony. Nope, not the SDGOP because they haven’t been caught–yet.

    Little Demented Donny Jr. There’s an email he sent to Kellyanne Conwoman, Steve Bunion and a couple other WH cretins about him using a hack from Wikileaks. That’s a felony. The paywall free story is here:

    https://short1.link/VE91vN

  16. Adam 2019-05-01

    I LOVE IT !!!

    May 3rd forecast looks like it’s going to be a beautiful day!

    Cory, you and your team have done phenomenal work on this !!! Thank you so much !!!

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