When Initiated Measure 24 passed last year, sponsor G. Mark Mickelson was full of confidence:
“I think these guys are going to take their chips and go play in Idaho or North Dakota and leave us alone,” Mickelson said. As for a lawsuit against the out-of-state ban, he said: “Bring it on. We’ll win. And it’s a fight worth having” [James Nord, “Out-of-State Initiative Money Ban Likely to Face Challenge,” AP via Rapid City Journal, 2018.11.07].
Mark Mickelson’s mouth wrote a check that he couldn’t cash.
Our victory yesterday over Mark Mickelson’s cynical attempt to hamstring grassroots ballot measures and the First Amendment in South Dakota under the guise shows Mickelson’s confidence was unwarranted. From the moment he took out his petition, the preponderance of commentators told this Harvard Law grad that telling Minnesotans they can’t engage in the same First Amendment activities as South Dakotans wasn’t going to fly with a judge. Now Judge Charles Kornmann has proven our point… and now Mickelson’s big talk will lead to the taxpayers of South Dakota having to pay the lawyers who brought the fight that Mickelson asked us to bring on.
Our victory over the state and IM 24 was complete and categorical. Judge Kornmann didn’t give ground to any one of the state’s arguments. IM 24 flatly violates the First Amendment and the Commerce Clause. Slam dunk.
But here are the two most important things Judge Kornmann said in his ruling.
First, Judge Kornmann boldly stated the importance of ballot measures as a vital check on the power of state government, especially in a one-party state like South Dakota:
The right of initiative is very important in states like South Dakota where the dominant political party controls, and has for 26 years, the office of the governor, the state House and the State Senate. This so-called “trifecta” makes it more difficult for the opposition party to pursue its agenda in the state legislature. https://ballotpedia.org/Partv control of South Dakota state government (visited May 7, 2019). The evidence presented in this case demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy. Buckley v.Valeo. 424 U.S. at 21, 96 S.Ct. at 636 [Judge Charles Kornmann, Opinion and Order, SD Voice v. Noem et al., 2019.05.09].
Judge Kornmann is saying that when one party holds a strong political majority in a state’s elected offices, the minority has a right to associate with and seek assistance from fellow citizens in other states to combat that majority’s policies through ballot measures.
Judge Kornmann also offers support to the argument that Mickelson and the state are not telling the truth when they claim to oppose out-of-state influence in South Dakota politics. Giving more weight than I thought he would to all the money we pointed out that defendants Kristi Noem and Jason Ravnsborg and IM 24 sponsor Mickelson have taken from out-of-state donors, Judge Kornmann says IM 24 was not designed to “eliminate the ‘evil’ of interference” in South Dakota’s “self-governance”:
IM 24 does not prevent any non-resident person, corporation, or Political Action Committee from contributing to the campaign for a candidate. Most state laws are enacted by state legislators (as opposed to by initiative). Since political candidates who are elected are the usual lawmakers, state law can still be manipulated by non-residents who contribute to the election of candidates who possess similar ideology or have made campaign promises to support certain laws.
…IM 24 restricts contributions to a statewide (whatever that is) ballot committee from a political committee organized outside of South Dakota. However, there is no prohibition on the residency of donors to other political committees that are organized in South Dakota. Thus, a South Dakota PAC could receive substantial sums from out-of-state donors and legally contribute those funds to a ballot committee. IM 24 does nothing to prohibit out-of-state individuals or corporations from making independent expenditures to purchase political ads from media outlets or disseminating political materials through the mail on their own behalf. Phillip Morris could purchase political ads urging South Dakotans to oppose an initiated measure banning smoking and neither IM 24 or any other South Dakota campaign finance law would prevent the expenditure. IM 24 would not have prevented the so-called evil it sought to target— independent spending by an out-of-state individual to support a South Dakota ballot issue [Kornmann, 2019.05.09].
Judge Kornmann’s ruling affirms that Mickelson’s IM 24 was a sham. Mickelson didn’t want to stop out-of-state influence. He wanted to throw one more gob of anti-democratic spaghetti at the wall, Constitution be darned, and see how far he could push his agenda of crushing the grassroots ballot measures that threaten his political agenda.