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Key Points from Kornmann: Ballot Measures Vital Check on Majority Party; IM24 a Scam

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 OrderSD 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.

21 Comments

  1. Terry Camp 2019-05-10

    The US Constitution essentially forbids states to mandate where a person can live. The right to travel is implied. When the founders debated the Bill of Rights, the right to travel was deemed to be so basic, like breathing and eating, it was not included but implied.
    We also see the great value in the Citizens United ruling because this gives the minority (the little guy) more of a voice. This is why the corrupt political class wants Citizens United overturned.
    This is all good.

  2. LS1 2019-05-10

    Mickelson’s bravado on IM 24 always struck me as deeply ignorant and I’m glad to see the court’s ruling here (and thankful that you took this on, Cory).

    This is just the latest example in the pattern of legislators bullheadedly pushing ahead on their very flawed legislation / policy priorities and ignoring basic case law and constitutional standards. It would almost be comical if it didn’t result in taxpayers being left on the hook for the (rightfully filed) lawsuits these measures prompt.

    I suppose I’d feel less frustrated if politicians actually faced electoral consequences for these shenanigans but I won’t hold my breath.

  3. Donald Pay 2019-05-10

    Kornmann lacked the guts to take on the money is speech idea. Too bad. I would have liked to have seen more innovative legal scholarship put toward chipping away at that idea. The decision is probably the best that could be written given the fantasy world created by billionaires and their Supreme Court lackeys.

    After completely capitulating to the money is speech fantasy he turns the argument into an argument for political begging. Kornmann views the poor people of South Dakota as being so trampled on by the Republican hegemony based on billionaire and out-of-state money that he says it is fine if opponents go begging to other billionaires for the scraps off their table to counter the Republican menace. And in a money is speech world, that is certainly one way to go.

    I was always a supporter of a different way of fighting the menace of money and one-party hegemony: grassroots organizing, good research and using their authoritarianism against them.

  4. Edwin Arndt 2019-05-10

    It’s interesting that Minnesotans do not have the
    right of initiative in their own state.

  5. Cory Allen Heidelberger Post author | 2019-05-10

    Donald, could the judge unilaterally take on that argument when neither the plaintiffs nor the defense contested the principle that money = speech?

  6. Donald Pay 2019-05-10

    Cory,. Probably not.

  7. Cory Allen Heidelberger Post author | 2019-05-10

    I get the feeling that when Terry Camp invokes the “corrupt political class,” he’s baiting us to get off topic.

    The strong point here is that in South Dakota, where the corrupt political class is the GOP that keeps its lock on elected offices by trying to shut out thoughtful discussion of real policy and tries to get people to vote on nothing but party label, ballot measures are a vital check on that corruption and an opportunity for the people to bring up substantive policy discussions without the clutter of party labels and identity politics.

  8. bearcreekbat 2019-05-10

    Cory and Donald, to the best of my knowledge a federal judge is not bound by the parties agreement about what a law means. The judge is duty bound to apply the law correctly and must make his or her own independent determination of what the law is (i.e. means). Kornmann could have sua sponte raised and decided any relevant legal matter he thought appropriate, provided each party had reasonable notice and an opportunity to address the issue.

  9. Debbo 2019-05-11

    Cory, I’m completely enjoying the visual of Marky and his pals shot putting pasta around the rotunda, hoping they get lucky. 😀😀

    I agree that it would be nice if Minnesota had initiative and referendum, but we have a great deal more political balance. Right now we’re the only state in the nation with a split state house. Our need is not so dire as SD’s. I & R is really all SD voters have at this time to make their voices heard.

    Idaho’s GOP dominated government was just about as bad. The citizens voted in Medicaid by a hefty margin in 2018, but the lege wrote and passed a law to deny that this Feb or March. The citizens raised such hell that they scared the GOP governor into vetoing it. I’m guessing, or hoping, there will be some changes in the next legislative election in the spud state.

    I wonder if any South Dakotans saw that as a model for citizen action to build a responsive legislature? Hope springs eternal. 😯🤔

  10. Debbo 2019-05-11

    Sensible South Dakotans would have much less need of I & R if the GOP voters would stop voting their interests. What am I saying?!? 😮😮😮
    Read this very short blog post to get an expert’s explanation.

    https://short1.link/eFN94g

  11. T. Camp 2019-05-11

    Cory: I try to be equal opportunity when I talk about the ‘corrupt political class’. There is more than enough corruption to go around.
    We had the corruption of the Bush Administration with prisoner torture and war. We then learned of our own DNC corruption during our last primary, staff members were fired and much was revealed in Donna Brazil’s account. BTW, she now works for FOX!! Then we had ‘The Russian Thing’ which blew up in our face.
    As a neo progressive I try to sound the alarm that we can’t do anything about the Repubs. They are a lost cause and have no control over them. We must however, clean up our own party, reform our DNC, kick out the scoundrels, the corrupt and restore the Democrat Party to the ideals that JFK set.
    If we think only the Repubs, are corrupt we are kidding ourselves. Regrets I took so long to respond. I had a Charter from ABR to SAN. Gotta get some sleep now. G Day.

  12. Porter Lansing 2019-05-11

    neo progressive? Russian influencer, more like.
    – The Russian Thing blew up in Dem’s face? Boloney. Trump is so guilty it reeks. If he didn’t have Presidential immunity he’d already be charged. When his campaign’s encrypted communications with Russian operatives are deciphered, the truth will rain down like Angel Falls in spring. At least six valid counts of obstructing justice, also.
    – We can’t do anything about the Repub’s? Democrats took the House. Senate and White House soon to follow. This four years of America will soon be just a grease spot on the past.
    ~ You know, buddy. My phraseology software says you’re Kevin Vogel aka Ol Sarge with a new IP address. Same words and same attempt to distract, disrupt and disassociate your affiliation with the right wing.

  13. grudznick 2019-05-11

    Minnesootians cannot initiate measures? Well no wonder why those DFL norskies with the need to control others try and stick their out-of-state money and germanic noses into the business of the Great State of South Dakota.

  14. Porter Lansing 2019-05-11

    grudz-knick …
    Q – How does a lobbyist sleep?
    A – Well, first he lies on one side, then he lies on the other.

  15. grudznick 2019-05-11

    Little Johnny walked to the front of the classroom and dumped a box full of cash on the teacher’s desk. “$2,467,” he said.

    “$2,467!” cried the teacher, “What in the world were you selling?”

    “Toothbrushes,” said Little Johnny.

    “Toothbrushes,” echoed the teacher,

    “How could you possibly sell enough tooth brushes to make that much money?”

    I found the busiest corner in town,” said Little Johnny, “I set up a Dip & Chip stand, I gave everybody who walked by a free sample.”

    They all said the same thing, “Hey, this tastes like dog sh!t!”

    Then I would say,”It is dog sh!t. Wanna buy a toothbrush?”

    “I used the governmental approach of giving you something crummy that they say is good, and then making you pay to get the awful taste out of your mouth.”

  16. Cory Allen Heidelberger Post author | 2019-05-11

    BCB: interesting point about sua sponte. I need to remember that court isn’t high school debate. In that youthful forum, we judges are generally precluded from voting on issues not raised by the debaters.

    You mention that if a judge does introduce a new argument into the decisions, the parties get a chance to respond. Would that chance to respond come before or after the ruling? If one party responds with sufficient logic and evidence to refute the new argument, can the judge reverse himself?

  17. Cory Allen Heidelberger Post author | 2019-05-11

    Bush, Brazil, DNC… Terry Camp, if you’re trying contribute something useful to the conversation about Judge Kornmann’s ruling and the value of initiative in South Dakota, I think you need to go back, read the article, and get back on topic. Borrowed generic national-level tropes don’t add much to our understanding of South Dakota politics.

  18. bearcreekbat 2019-05-11

    Cory, in theory a judge should provide notice and an opportunity to be heard before any ruling, although as a practical matter the timing of a judge’s ruling sometimes does not abide by theoretical requirements (which if egregious enough can be grounds for reversal).

    And of course a judge can almost always reverse the court’s initial ruling or legal interpretation provided the court has not lost jurisdiction over the case, although it is usually extraordinarily difficult to convince a judge to change his rulings. A couple exceptions that I seem to recall exist in criminal cases – once a judge grants a directed verdict of acquittal or imposes a sentence, I think the judge is normally barred from withdrawing the acquittal or increasing the punishment regardless of the prosecutor’s subsequent arguments (again, there may be yet another rare exception to even these exceptions – the law is kinda like that ya know).

  19. leslie 2019-06-11

    And G continues to degenerate the conversation. So ol sarge and this other guy might be another troll named terry?

    Can you envision Al Gore and his team of scientists inventing the net knowing the coarsening of society would be the result? Matt Ranken, G and somebody else yesterday provided enough spittle for a month on this blog. Ugly. Well handled Cory, as always.

    Finally my gut says Kornman’s articulation of I/R as a backdoor around a political monopoly may be wrong. And deciding the case on a basis not argued by the parties seems might be abuse of judicial disgression. Just spitballing a bit :)

  20. Cory Allen Heidelberger Post author | 2019-06-13

    Leslie, Judge Kornmann’s comment about the value of I&R may be a step away from the specific arguments of law made, but can we argue that they fit with the judicial reasoning necessary to protect the process from Legislative hindrance? Judge Kornmann is setting the bar for the state’s compelling interest, which exists relative to the people’s compelling interest in access to this vital political tool.

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