Cory in Court: Judge Kornmann Hears Challenge to Out-of-State Money Ban

Last updated on 2022-06-10

I went to court yesterday, said nothing dumb, didn’t torque off the judge (not noticeably, at least), and sat next to Marty Jackley without starting a fistfight. That felt like four wins right there.

In my first visit to a federal courtroom, suing to overturn an unconstitutional ban on out-of-state contributions to South Dakota ballot question committees, I sat in front of the bar with the following cast (as seated from right to left, as viewed by Judge Charles Kornmann):

• my lawyer, Jim Leach, who came to Rapid City over forty years ago to work for the Wounded Knee Legal Defense/Offense Committee, and now is representing my ballot question committee and myself in SD Voice and Cory Heidelberger v. Kristi Noem, Jason Ravnsborg, and Steve Barnett;
• myself, political blogger, educational technologist (happily burning a personal day from work for this legal excursion), ballot question activist;
• Marty Jackley, establishment Republican, former Attorney General, and frequent target of criticism on this blog, representing a host of mostly money-driven plaintiffs in a separate but equal lawsuit, South Dakota Newspaper Association, South Dakota Retailers Association, South Dakota Broadcasters Association, South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity v. Steve Barnett and Jason Ravnsborg;
• Ryan Morrison, a Kentucky attorney from a Washington, D.C., conservative non-profit who said nothing during the proceedings save some eager whisperings to his co-counsel Jackley;
• Stacy Hegge, Assistant Attorney General, fellow proud SDSU grad, saddled with defending the state against my counsel and against the man who was her boss just five months ago;
• Kea Warne, director of the Division of Elections for the Secretary of State, dragged from Pierre to miss her high-school-senior son’s tennis matches (Ryan won all three of his singles and two of his three doubles).

Here’s what I saw and heard and thought.

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Prelude

While Counsel Leach and I waited in the cramped dead-end crook of the fourth-floor corridor, waiting for someone to unlock the courtroom for us, I saw in the I noticed in the curved surveillance mirror a figure walking away. For a strange moment, I thought I was seeing a warped reflection of my blue-suited self walking away. Then my reason and optic center dismissed the illusion and distinguished myself from the shrinking human arc in the mirror. I went up and introduced myself to cross-plaintiff Steve Willard, who runs the South Dakota Broadcasters Association, which sent no broadcasters to cover this trial. Since every plaintiff in this case takes a keen interest in South Dakota ballot measures, I asked Willard if he’d like to sign the two petitions, initiative and referendum, that I’m carrying to improve the initiative and referendum process. Willard said he’d have to read up on them.

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Monologue: This Is the Judge’s Show

We all rose, and Judge Charles Kornmann started the show at 10:30 a.m. Right out of the gate, Judge Kornmann denied the state’s motion to stay the SDNA v Barnett proceedings (even though Jackley filed that suit just two weeks ago and his motion to consolidate his suit with mine just one week ago). He also denied the SDNA plaintiffs’ motion to consolidate their suit with mine, saying that there is at least one different issue raised in SDNA and that, should plaintiffs prevail, he will calculate legal fees differently (remember: SD Voice is doing with one lawyer what SDNA et al. choose to do with five).

Judge Kornmann said he would skip considering the preliminary injunction SD Voice seeks and move directly considering a permanent injunction. He would conduct this hearing as a trial on the merits. In other words, yesterday, we were playing for all the marbles. Judge Kornmann said that, having spent the winter in Florida and coming back to a packed docket, an Eighth Circuit convention, and the South Dakota Bar Convention all before July 1, he planned to issue his final ruling in our cases in the next week or two.

Now all I know of court comes from television, so at this point, I figured the next words from the judge would be, “Plaintiffs, call your first witness.” Instead Judge Kornmann surprised me (and at least my counsel, who knows five decades more about court than I do) by discoursing on his thoughts about the case.

Judge Kornmann recounted his long experience, thirty years, as a lobbyist at the South Dakota Legislature and occasionally Congress. As he listed his lobbying clients, he mentioned at least one out-of-state outfit, a Nebraska utility group. He mentioned chairing a committee back in the 1990s tasked with naming the worst bills passed by the Legislature; he joked that he had requested an extension of the time that committee had to complete its task.

Judge Kornmann said that the defendants, the state, had to prove that Initiated Measure 24 passes Constitutional muster. He likened IM 24, passed last year by the voters, to 1998 Amendment E, the initiative South Dakota voters passed to ban corporate farming. Judge Kornmann overturned that initiative as unconstitutional in 2002. Judge Kornmann recalled that then-Attorney General Mark Barnett (yes, we now have involved three members of the extended Barnett family in this case) had a hard hill to climb in defending Amendment E. He said the state’s current hill required showing that it has a compelling interest in banning out-of-state contributions to ballot question committees and that this ban is narrowly tailored to fulfill that interest without unnecessarily infringing on constitutional rights.

Judge Kornmann then cut one of the ropes the state was using to climb that hill. He declared that political contributions are commerce. Both SD Voice and SDNA argue that banning out-of-state contributions violates the Dormant Commerce Clause, to which the state responded (as might any casual legal observer) that donating to political campaigns is not commerce. But contributions are commerce, said Judge Kornmann, and he read from Egan V. United States 1943, the very case that plaintiffs cited in filings to make that point.

Judge Kornmann said the court should show great respect for the will of the voters; however, as Judge Kornmann ruled on Amendment E, the court cannot let stand an unconstitutional law just because a majority voted for it.

Judge Kornmann then talked through his reading of what Initiated Measure 24 does. He said the impending law (the ban is tagged now as SDCL 12-27-18.2; the reporting, investigating, and penalizing provision is SDCL 12-27-47.1) bans contributions from ballot question committees from non-South Dakotan persons and from political committees like the Republican National Committee. He said IM 24 bans contributions from “entities” (that’s our election law term for businesses, labor unions, and non-profits) that have been registered in South Dakota for less than four years. The judge noted IM 24 does not stop foreign corporations who happen to register here from contributing.

Judge Kornmann then grappled with the term “statewide ballot question committee.” What about “local” ballot question committees, he asked. What if a ballot question committee operated only in South Dakota’s metropolitan areas (if, Judge Kornmann mused, South Dakota has any metro areas)? Could a ballot question committee evade the out-of-state money ban by operating only in Sioux Falls and Rapid City?

Judge Kornmann said a ballot question committee faces penalty under IM 24 if it “accepts” out-of-state money. The judge noted IM 24 does not define “accepts” for the Secretary of State, whom IM 24 charges with imposing that penalty. He also observed that under IM 24 directs the Secretary of State to conduct hearings. The courts, said Judge Kornmann, generally do not allow administrative agencies to decide questions of constitutional law.

Judge Kornmann then turned his attention to out-of-state volunteers. Noting that the Legislature passes all sorts of (“I won’t call them crazy,” he said from the bench) laws dealing with social issues. He said something like an abortion ban would prompt all sorts of volunteers from elsewhere to come here and campaign for related ballot measures. Under IM 24, can a Minnesotan still hop the border and volunteer for a ballot question campaign? Could plaintiff Tom Barnett come back from Florida and volunteer? He cited the definition of “contribution” in SDCL 12-27-1 that excludes volunteer work, but he said he is unpersuaded by the IM 24 “Pro” statement in the 2018 ballot question pamphlet (penned by then-Governor Dennis Daugaard) that assures us IM 24 only prohibits “financial contributions. Judge Kornmann said he is “concerned” that IM 24 could complicate distinguishing volunteer and arguably more valuable in-kind contributions from cash contributions for the purposes of penalty under the new law.

Judge Kornmann said IM 24 does not stop South Dakota PACs from accepting out-of-state money and then donating that money to ballot question committees. He noted that IM 24 puts no restrictions on contributions to candidates, which leads him to question the focus of IM 24. Out-of-state businesses can also register in South Dakota and contribute all the money they want to ballot question committees four years later, so IM 24 may not be as broad a restriction as some may think.

Toward the end of his remarks, Judge Kornmann cut another rope to the state’s steep climb. He said that while he has never been a fan of Citizens United, the 2010 case the firmly established corporations’ rights to spend money on political advocacy, it is the law of the land and it applies here. Thus, Judge Kornmann said he must apply the strict scrutiny standard, not the reduced “rigorous standard of review” on which the state bases its arguments.

When Judge Kornmann finally invited the litigants to begin, I wondered if Jim Leach might just say, “Your Honor, we couldn’t have put it better ourselves. Plaintiffs rest.” But we had work to do.

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Cory on the Stand

There is a glaring blank spot in my notes here, because Leach began with his sole witness, me, and I took nothing to the stand but my cup of water and a determination not to speak fast. The judge’s clerk swore me in (the oath did not include any deities, thank you), and I took the stand, with my attention 90% on my attorney, 9% on the court reporter to make sure smoke didn’t start coming from her flying fingers, and 1% on Chamber chief David Owen in the pews to make sure he didn’t make any funny moose-antler faces at me.

Standing at the lectern by our table, in his dark blue with subtle plaid jacket, blue tie, and brown pants, Jim Leach was the only attorney in the room with a mustache, which I think gives me an edge. In his patient, methodical delivery, Leach asked me simple factual questions about my employment, my blogging, and my ballot question activism. He established that my current petitioning has nothing to do with this lawsuit, that during the many months that I spent drafting my People Power Initiative, I had no inkling that I’d be taking IM 24 to court.

We discussed the twelve exhibits we submitted: campaign finance forms showing multiple and substantial out-of-state contributions to a variety of ballot question committees, to defendants Kristi Noem and Jason Ravnsborg, and to IM 24 sponsor G. Mark Mickelson. We also discussed the out-of-state contributions SD Voice has received so far and my willingness to accept contributions. I can’t recall if I said the following in response to my counsel’s questions or under cross-examination by the state (in court as in science, it’s hard to participate and observe), but Elisa Sand reports that I said the following, which appears accurate:

Heidelberger said he’s received out-of-state contributions and would like to continue to do so.

“We need significant funding to support these ballot measures,” Heidelberger said. To him, he said, it doesn’t matter if they come from in-state contributors or out-of-state. “I welcome support from anyone who supports democracy in South Dakota” [Elisa Sand, “Judge to Weigh Evidence in IM 24 Injunction Request {paywall},” Aberdeen American News, 2019.05.03].

My counsel led me through questions establishing that IM 24 provides no definition of residency and thus no guidance for non-lawyers like me running ballot question committees on how to reliably determine the residency of every person who hands us $10 and protect ourselves from prosecution.

Judge Kornmann asked the other plaintiffs if they had any questions for me. Jackley said no. I was disappointed—I enjoy my conversations with Jackley… but I can wait for another judicial occasion when we can be on opposite sides, the way Gaia intended, and he can cross-examine me.

Assistant Attorney General Hegge rose in her brown outfit (brown, all brown, jacket, skirt, and shoes, reflecting the mud through which Jason Ravnsborg or his chief of staff Tim Bormann had dispatched her to hopelessly slog) to ask me questions. She swung no punches, challenged nothing I’d said, and elicited no information that I heard surface later as a key part of the state’s case.

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Minor Missouri Musing… or Misfire?

My notes do not make clear whether Assistant Attorney General Hegge made the following point before or after my testimony, and her case made so little impression on the only non-litigating journalist in the room that she gets just five sentences at the very bottom of Sand’s article. But AAG Hegge did rise to ask the court to reconsider its position on strict scrutiny in light of a 2018 Missouri case that distinguishes the standard to be used on “contributions” versus “expenditures.” Everybody noted the case number, but we didn’t get into much argument over it. I didn’t have my Internet in the courtroom (as our federal courthouse bans all electronic devices in anyone’s hands other than attorneys, out of which I might make a federal case on another occasion), but as I glance post iudicium at Free & Fair Election Fund v. Missouri Ethics Commission 2018, I find our Eighth Circuit upheld a lower court ruling that a voter-approved ban on PACs’ accepting contributions from other PACs violates the First Amendment. Just last week, the U.S. Supreme Court declined to hear Missouri’s appeal. So once again, the state’s own authorities appear to hang their own case.

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Taking Care of Business

After Judge Kornmann released me from the stand, Jim Leach rose from his seat to my left to rest SD Voice’s case. Marty Jackley then rose from his seat to my right to present SDNA et. al’s case.

I watched Marty Jackley at the lectern. In his blue suit and gold tie, he was totally tan and trim. I considered asking him if he’d like to stick around town after the trial and go for a run. Marty’s always ready to run.

Jackley called one witness, David Owen, state Chamber exec. I made no funny moose-antler faces at him (because, of course, the judge can see everything). Jackley and Owen discussed the Chamber’s long involvement in South Dakota ballot questions. Owen noted that IM 24’s requirement that businesses be registered in South Dakota for four years before contributing to a ballot question committee actually excludes at least a couple of its 400 or so members, new South Dakota companies, from supporting the Chambers own ballot question activities. That includes one company owned by a former Chamber director (Kirby? Lien? Owen did not specify, and Jackley didn’t ask). Owen also noted that a number of its members have headquarters outside South Dakota, further confusing the question of whether its members can legally participate in their own associations ballot question activities.

Jackley and Owen reached for Judge Kornmann’s mention of Amendment E and offered an example of how IM 24 could harm South Dakota’s economic development efforts. The state, said Owen, is recruiting more dairies to supply our big cheese factories. If measures like Amendment E arise that would restrict corporate farming, new dairies would not be able to join any campaign to protect their own interests.

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Broadcasters Argue Quietly

AAG Hegge declined to cross-examine Owen. Instead, she asked if SDNA could bring forward one of the representatives of the media organizations who had filed affidavits asserting harm to their organizations. Jackley went back to Steve Willard of the Broadcasters and David Bordewyk of the Newspapers behind the bar and said, “You guys pick.” Willard picked.

(In this transition, Judge Kornmann asked if the plaintiffs needed to demonstrate some de minimis harm. He said dollars may not matter in a Constitutional question, but he’s not sure.)

On the stand, Willard said the 105 radio and 27 TV members of the South Dakota Broadcasters Association provide coverage of ballot question to meet their license obligations to provide programming in the public interest. He said that a ballot question committee must have a minimum of $250K to $300K to run an effective campaign. (I mentally glanced at the $17K in SD Voice’s bank so far and thought, we’ll show them!) Willard asserted that IM 24 will harm the broadcasters by limiting the money available to campaigns, which will result in less content on the airwaves.

Again, Willard made this claim in a courtroom where no broadcasters had come to create any content to place on the airwaves to inform the public about this important ballot measure and its potential impact on all future ballot measures. A newsman from KDLT did call me three weeks ago to indicate they were thinking about whether to run a story on the challenge to IM 24. Despite my suggestion to the KDLT newsman that a liberal blogger and a conservative former attorney general shoulder-to-shoulder in suing the state would make great TV optics, KDLT appears to have run nothing on Jackley’s part in this challenge and only reprinted an AP story on March 4 on mine.

AAG Hegge asked if IM 24 prohibits out-of-state donors from bypassing ballot question committees and buying ads directly from the broadcasters to say whatever they want about South Dakota ballot questions. Willard said most donors would find that process offputting and “intimidating” and would prefer to leave the work of crafting campaign messages to the ballot question committees. He also said that independent expenditures have less transparency.

Hegge asked Willard to quantify the harm IM 24 would do. Willard acknowledged that’s hard, but he said the independent expenditures are “outliers” in ballot question campaigns. Hegge asked if IM 24 could cause spending patterns to shift from ballot question committees to independent expenditures. Willard shrugged that it could (from my seat, I tried to telepathically project the better answer: “Anything is possible, but if counsel is asking me to speculate about the future, empirical evidence from past campaigns indicates it is far more likely that donors will back out and we’ll see less money and fewer ads”).

Hegge asked what other factors could affect broadcasters’ revenues—which struck me as a stunningly vague and open-ended question that failed to drive the witness toward any answer that clearly plugged into the state’s defense. Instead of saying, “IM 24 is the clear and present threat to the immediate interests under discussion in this case,” Willard seeded a whole separate blog post on how the shift to digital (do I sense plaintiff-on-plaintiff moose-antler wagglings now?) could drag down ad revenues.

Jackley offered no redirect and rested his plaintiffs’ case.

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The Defense

The state called its sole witness, Kea Warne, to the stand. Warne has worked in the Secretary of State’s office since 1993, except for a hiatus from 2011 until 2015, during the period when the office was mismanaged by a Republican political hack who cared little for fair elections (Kea provided the dates; I’m providing the context). Hegge led Warne through questions establishing that IM 24 leaves open many avenues for out-of-state donors to participate in South Dakota politics. Out-of-staters can still contribute freely to South Dakota candidates, parties, and PACs. Out-of-staters can fund all the independent communications they want. PACs can funnel out-of-state money to ballot question committees.

(Stop right there: so I can form a PAC (it will be called CORPAC), solicit beaucoup bucks from out-of-state donors, then transfer than money to SD Voice? Really? Subverting IM 24 is that simple? If so, what am I suing for? Oh yeah, First Amendment.)

Hegge asked Warne to detail the reporting requirements for independent communications. Hegge then popped her big question: independent expenditures require more detailed reporting and thus give the public information that do ballot question committee contributions, right?

That’s an outstanding question for the defense. It establishes that IM 24 helps the public get more information about who’s funding all those political ads and thus make better decisions. Hegge could tie that point in to my comments from the stand: The plaintiff said the mission of SD Voice is to support measures that strengthen democracy, and he agrees that educating the public strengthens democracy, so by helping the public get more information about campaign finance, IM 24 strengthens democracy and should be right up SD Voice’s alley!

But… but… but… Kea Warne, witness for the defense, whom we would assume was prepped to ace this ball right off the tee, responded to defense counsel’s question with a duffing, “It depends.”

Hegge didn’t redirect, didn’t ask “depends on what?” didn’t go for some salvage of what sounded like a pretty good point. She just abandoned the hole and went on ask Warne to read the exhibits showing that a majority of South Dakotans voted for IM 24 (which Judge Kornmann indicated at the top would not outweigh violations of the Constitution) and that a majority of the money behind the Amendment S crime victims bill of rights (which Warne resisted calling “Marsy’s Law,” despite questions from Hegge about whether that measure had a “common name,” which again left me wondering if counsel had done any witness prep). And oddly, when Hegge asked if out-of-state donors were the “only” source of funding for Amendment S, she let Warne answer, incorrectly, that out-of-state dollars were the “majority” of Amendment S funds. Except for $100 from his Las Vegas compliance agency, every dollar in California billionaire Henry T. Nicholas’s multi-million-dollar campaign came from Henry T. Nicholas. Every dollar came from out-of-state, a basic point motivating the state’s professed interest in stopping out-of-state interests from foisting bad laws on South Dakota. But Hegge didn’t correct her witness, let that deflation of the state’s case by the state’s witness stand, and handed questions off to SD Voice attorney Jim Leach.

On cross-examination, Leach asked Warne if IM 24 bans some out-of-state contributions but not others. Warne agreed with that plain fact. So, Jackley asked, IM 24 “singles out” ballot questions and uniquely restricts that “form of expression”? Warne agreed.

Leach asked if there is something “particularly odious” about Marsy’s Law. Warne replied, not that she is aware of. (I’d have given a much different and more exciting answer, but my lawyer wisely avoided luring me into blogging on the stand.)

Leach asked if there’s a right to free speech in South Dakota. Warne said yes.

Leach asked if the campaign finance reports documenting out-of-state contributions to ballot question committees are available to the public. Warne said yes.

Leach noted that Henry T. Nicholas’s people had formed an entity called Marsy’s Law for South Dakota LLC in 2015. He asked if IM 24 would have prohibited that corporation from contributing to the Marsy’s Law campaign. Warne seemed not to address that intriguing possibility but said IM 24 applies to all future ballot question topics.

Jackley asked Warne a few cross-examination questions as well. He noted the big money spent on advertising for Marsy’s Law on one of the campaign finance reports and asked if those six figures would constitute more than a small or de minimis amount in the South Dakota media market. Warne, while not a member of the advertising or media industries in South Dakota, assented.

Jackley asked IM 24 imposes an “absolute and complete ban” on contributions to ballot question commitees by non-residents, out-of-state political committees, and entities not registered in South Dakota for four years or more. Warne assented.

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Kornmann’s Third Strike

Then Judge Kornmann asked Warne if she agreed with his opinion that IM 24 prevents plaintiff Tom Barnett, long-time South Dakotan now moved to Florida, from coming back to South Dakota and volunteering for a ballot question committee. Kea Warne said yes.

Hold the phone again. I think that legal point is debatable. I think SDCL 12-27-1 spares Tom Barnett and other potential out-of-state volunteers from IM 24’s ban. But I’m not in court to think. That’s the judge’s job, and if he’s thinking the law I want to overturn is even more extensive and thus more unconstitutional than I’m arguing, and if he just got the state’s sole witness to say the same thing, I will yield the floor all day long. Holy cow! (said, in one way or another, every lawyer at my table, including, the Koch Brothers’ Kentucky lawyer, who otherwise was as Dormant as the Commerce Clause to which we appealed).

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Kornmann’s Paradox

With Warne still on the stand, Judge Kornmann observed that he had “looked at the website” (linked, I imagine, to Norm MacDonald’s www.computer, but absent punchline or clarification, we soberly deduced that His Honor meant the Secretary of State’s campaign finance reporting system) that of the ten active statewide (and Judge Kornmann reëmphasized that he considers that term “pretty loose”) ballot question committees listed, only three have been registered for four years or more.

Now I hope I didn’t mishear the judge, and I apologize profusely to the court if I am, but Judge Kornmann appeared to be wondering if IM24 could be read to prohibit new ballot question committees from contributing to each other… and to their own operations?

Kea Warne stayed out of that thicket. She merely affirmed that IM 24 prohibits new businesses from contributing to ballot question committees until four years after registering with the Secretary of State.

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Jim Leach for the Constitution

The defense rested, and Judge Kornmann asked if folks wanted to make arguments. My attorney, Jim Leach, said that if the judge wanted, we would, but if he didn’t, we were good. Judge Kornmann said it was up to us. Inside, I was like, Come on, Jim, let ‘er rip!

Jim let ‘er rip.

[Note: the order was Leach, Jackley, Hegge, then rebuttal by Leach and Jackley. I’m going to merge arguments and rebuttals rather than recounting them chronologically.]

Attorney Jim Leach said he didn’t want to sound like he was just waving a big ol’ flag, but it was tough not to when arguing a case that touches on three core Constitutional provisions. The First Amendment, Leach said, is the “foundation of how we conduct our political affairs.” The Commerce Clause is the “foundation of how we conduct our economic affairs. The Equal Protection Clause is the foundation of how we conduct all of our American affairs with equity for all Americans (no, Jim didn’t say it that way, and when I heard his second sentence, I was immediately aching for him to go for the three-banger parallelism that would have brought a tear to David Owen’s steely eye, but we’re not here to make the greatest speech ever; we’re hear to win the gosh-darned case).

With lawyerly focus, Leach noted that FFEF v. Missouri didn’t overturn Citizens United and that the strict scrutiny standard remained appropriate to evaluating IM 24. He said the state had failed to show any legitimate interest, never mind a compelling interest, in infringing on the above Constitutional rights. He said the courts have established that limits on campaign contributions can only apply to situations where quid pro quo corruption can take place. That risk exists only with candidates. Ballot questions, once passed, “can’t reach back and give favors.”

Leach said voters know the funding sources of ballot measures and can choose whether to make out-of-state support a voting issue or not. They knew Marsy’s Law was bankrolled enitrely by a California billionaire, but they passed it nonetheless. The “cynical” state is arguing that voters lack the smarts to take such sources into account in their voting, but, as the state motto says, “Under God the People Rule.” (What?! How’d Jim sneak that in on me? I feel about that motto the way Judge Kornmann and I feel about Citizens United.)

Leach added notes on commerce and standing. Judge Kornmann interjected that he doubted Tom Barnett would could back to South Dakota and spend a lot of money. The attorneys in the room shared some small mirth about what I can only assume, never having met the man, is a collegial jibe at the former state bar chief’s cheapskatery, a quality I respect and practice.

In rebuttal, Leach challenged the state’s contention that out-of-state interests could shift their spending to independent communications. He ridiculed the idea that the pages and pages of individual donors who in 2016 contributed $5, $20, or even $100 to support IM 22, the Anti-Corruption Act, would each find a way to buy their own newspaper or TV ads in South Dakota. Leach said IM 24 silences all of those Americans.

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Marty Jackley, Ironist

Elisa Sand led her AAN story with Marty Jackley’s opening line to his rebuttal, the last words Judge Kornmann heard. Sand appears to agree with me that Jackley popped off the most attention-getting line of the trial, the line that would have led off every TV and radio broadcast about yesterday’s trial if any TV or radio broadcasters had shown up to cover this trial in which they were litigants. (If I can write 5,485 words about it, you TV and radio guys can muster 60 seconds to serve the public interest.)

But Jackley’s line—

Very few issues would put Americans for Prosperity and SD Voice—or for that matter, me and Cory, to the same table.

The First Amendment is one such issue, said Jackley.

In his preceding argument, with Leach having plowed most of the topical ground, Jackley kept things brief. He underscored Leach’s key points: First Amendment, Commerce Clause, strict scrutiny, quid pro quo. He took an extra step and said it is unfair for the defendants (one of whom, we all quietly observe, caused him to be sitting in a courtroom next to Cory Heidelberger instead of in the Governor’s chair) to take out-of-state dollars for their political aspirations but ban the plaintiffs from doing the same. Jackley noted that the Wayfair case (the one thing Jackley did win last year) reinforced the Commerce Clause, holding that states cannot isolate themselves economically and must treat in-state and out-of-state businesses the same.

Jackley also offered some gentle consolation to the defense: he acknowledged what Judge Kornmann observed at the top about the difficulty Attorney General Barnett faced in 2002 defending the doomed Amendment E, then said the current attorney general faces the same difficulty today.

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The State’s Last Stand

Hegge responded to Jackley’s jibe by telling the judge to use the lower standard, not strict scrutiny, because… and I’ll admit, I got confused here. Maybe I just wanted to be confused; maybe the state has more arrows in its quiver than I want to acknowledge. But Hegge seemed to say something about bans versus limits, which makes no sense, because IM 24 is a ban, not a limit. It says no dollars, not some lower amount of dollars. My reading of our briefs and related cases indicates that when the state take the more sever action of a ban rather than mere dollar limits, the court applies stricter standards.

Hegge asserted that the state’s interest is “protecting South Dakota.” She equated IM 24 to restricting voting to residents and only allowing qualified voters to circulate petitions. (Check that last analogy:  SDCL 2-1-1.3, via SDCL 12-1-3, says petitioners must be South Dakotans and at least 18 years old, but it says nothing about being a qualified voter.)

Hegge invoked my complaint that Marsy’s law was particularly odious, saying that I blamed out-of-state interests for it and that voters responded by fixing it in 2018 with Amendment Y. (Wait: read the transcript back to me: did the state really suggest that the voters of South Dakota listened to Cory Allen Heidelberger?)

Hegge cited the Bluman 2011 ruling which said it’s o.k. to ban political contributions from foreign nationals. Neither Leach nor Jackley picked up that stick and shook it in rebuttals, apparently maintaining due confidence in Leach’s response brief of April 26 explaining that even the judge in that case, Brett Kavanaugh, rejects the analogy between foreign nationals and the 99.7% of Americans who don’t live in South Dakota.

Hegge also said that all those out-of-state donors from whom IM 24 is trying to protect us can still influence our politics via independent contributions… which tells me that the state isn’t really trying to protect us from big out-of-state money, only from the small out-of-state donors who individually can’t afford to design and place their own statewide ad campaigns.

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Coda

All parties rose for Judge Kornmann’s departure, then observed the Debaters’ Code and shook hands with each other, regardless of side.

I shook David Owen’s hand and asked him if, given our shared interest in protecting the initiative and referendum process, the Chamber would be interested in supporting SD Voice’s People Power Petitions. Owen said he would tell his people about them. I asked Owen if he’d like to sign the People Power Petitions himself.

“Not a chance,” said Owen. Not a chance.