Where Do Mickelson and I Get Off, Repealing the Will of the People?

Adam St. Paul of Dakota Broadcasting had me on the radio yesterday to talk about Judge Charles Kornmann’s overturning of Initiated Measure 24, Mark Mickelson’s unconstitutional and sham effort to ban out-of-state contributions to ballot question campaigns. During the interview (full In Touch audio not posted yet), St. Paul posed a particularly sharp questions: given how angry many South Dakotans were at Mickelson’s repeal of Initiated Measure 22, the Anti-Corruption Act, in 2017, what do I say to the voters whose will I just thwarted?

St. Paul noted that IM 24 passed last year with 55.5% of the vote. IM 22 passed in 2016 with only 51.6%.

Of course, if we measured by total vote turnout, if every voter were paying close attention and ready to take to the streets over the outcome of their ballot measures, there’d be about 5,700 fewer people protesting at my front door over my successful federal lawsuit to overturn IM 24 than would have been shaking their fists at Mickelson for sponsoring the emergency 2017 bill that repealed IM 22. On the flip side, there’s be 29,000 more No-voters patting me on the back for defending the First Amendment from IM 24 than would have been patting Mickelson on the back for protecting himself and his colleagues from tougher ethics laws.

But those numbers do not excuse overturning the will of the electorate. If Mark Mickelson took candy away from 181 babies and I took candy away from only 175 babies, we’re still both Snidely Whiplash. In our democracy, a majority is a majority, and a law is a law, whether approved by 99 out of 100, 555 out of 1,000, or 100,001 out of 200,000. Where do Mark Mickelson and I get off repealing any law approved by a majority?

To Mark Mickelson’s relief, equating him and me is as fallacious as equating IM 22 and IM 24 and equating their repeals.

First, I respect the Constitution, while Mark Mickelson does not. I can cite two instances—IM 24 and 2015 SB 69—in which Mark Mickelson was presented with clear precedent and expert analysis showing that his proposed laws were unconstitutional but shrugged without rebuttal and voted anyway to throw his unconstitutional spaghetti at the wall, just to see if he could luck out with a judge and get what he wanted. Show me a good argument that a law violates the Constitution, and I’ll either offer case law and a coherent rebuttal or I’ll say, “Yeah, you’re right, we’d better not do that.”

Such is exactly the case with IM 24. I was far more irate than Mickelson about California billionaire Henry T. Nicholas’s throwing his money at South Dakota to scrawl his poor dead sister’s name into our constitution with his sloppy, redundant, and arguably unconstitutional Marsy’s Law. I would love to have kept Nicholas’s money from influencing our 2016 and 2018 elections (unlike Mickelson, who let Nicholas use Mickelson’s Sioux Falls office to save Marsy’s Law in the 2018 primary election). But when offered Marky’s Law to supposedly ban Nicholas or any other California billionaire from directly supporting a South Dakota ballot measure, I checked the Constitution, concluded Nicholas has as much right to speak and spend in South Dakota as Mickelson and I do, and opposed IM 24 in public, at the polls, and in court.

Second, the bases and processes for repealing IM 22 and IM 24 were very different. Mickelson and his cronies took IM 22 to state circuit court and obtained a preliminary injunction in which establishment pal Judge Mark Barnett said the plaintiffs had a good chance on succeeding on a hodgepodge of state and federal constitutional arguments against a few of IM 22’s 70 sections. Judge Barnett then cobbled together a dubious non-severability ruling to support suspending the entire law while it awaited trial. Instead of waiting for that trial or any final ruling from Judge Barnett or the South Dakota Supreme Court, Mickelson and the Legislature raced ahead and repealed IM 22 in toto. The Legislature did not act with restraint and excise only the portions of IM 22 that clearly violated Constitutional provisions (and no final, binding determination of such violations had yet been made by any court); the Legislature threw out all of IM 22, then went on a tear to enact numerous restrictions on initiative and referendum to make sure nothing like IM 22 ever makes the ballot again.

I took IM 24 to federal court. U.S. District Judge Charles Kornmann conducted a full trial on the merits (see full recap of the trial here). Judge Kornmann issued a final ruling and permanent injunction of IM 24 based on core concepts of the U.S. Constitution and well-known case law.

Mickelson’s and the Legislature’s actions against IM 22 demonstrate an overarching contempt for the will of the people and a desire to protect their power and privilege. My lawsuit to overturn IM 24 shows simply my respect for the First Amendment and civic participation. I don’t loathe the voice of the people the way Mickelson and the Legislature do; as demonstrated by my ongoing ballot measure petition drive, I have deep respect for the voters and want them to have more voice. I simply recognize that even the popular voice cannot overrule the Constitution of the United States of America.

Third, unlike with IM 22, the voice of the people has been strangely absent in the debate over IM 24.

IM 22 stirred passionate public debate during the 2016 election. The lawsuit and Legislative action to repeal it drew vigorous protest from IM 22’s campaign leaders and from many other South Dakotans. IM 22 supporters filed documents with Judge Barnett and sought to intervene in the lawsuit against IM 22. As I circulate petitions now, I encounter voters who are still made about what Mickelson and the Legislature did to IM 22.

IM 24 drew little vigorous public debate during the 2018 election. Even the sponsor of Marky’s Law, Mark Mickelson himself, made no major public effort to promote his money ban. When I sued in March, and when Mickelson’s pals sued in April, I didn’t hear Mickelson make a peep.

And I haven’t heard anyone else make a peep. No one has called me or sent me a letter or come up and talked to me while I’ve been out petitioning and said, “Cory, don’t do this. IM 24 is good law. The voters want it. let it be.” No one has jumped into the press and said that. Even in my comment section, where people aren’t shy about disagreeing with me, I don’t think I’ve received any solid arguments for keeping IM 24. We’ve certainly had healthy debates about the merits of the basis of my lawsuit, the contestable proposition, most recently and prominently upheld in Citizens United, that money is speech. I said on the radio yesterday that voters who like IM 24 have the recourse of pressing to overturn Citizens United and amend the Constitution to declare that money is not speech. If the state were to appeal Judge Kornmann’s ruling and seek a repeal of Citizens United, Judge Kornmann and I might both flip and join their effort. But no one other than the state’s dutiful but outgunned Assistant Attorney General Stacy Hegge seems to be willing to stand up and say that IM 24, in and of itself, under standing precedent, is good and constitutional law.

I’m not saying public protest would have stopped me from pursuing this lawsuit. (Sometimes people telling me, “Don’t do that,” makes me want that much more to do that.) I’m just saying that, unlike with IM 22, I haven’t heard any protest, public or private, over my effort to overturn IM 24 and Judge Kornmann’s final overturning of IM 24. South Dakota voters took Mark Mickelson’s repeal of IM 22 as an insult. South Dakota voters barely noticed IM 24; they’ve barely noticed its judicial repeal. Voters cared about IM 22; they seem not to have cared to the same degree about IM 24.

But here’s the fundamental difference between the repeal of these two initiatives. Mark Mickelson and his Legislature repealed IM 22 on a lot of BS arguments that were never affirmed by a judge. IM 24 itself was a BS argument, a sham pretending to ban out-of-state money from South Dakota politics when in fact, as Judge Kornmann stated in his Thursday ruling, IM 24 would achieve no such aim. It was just another attack on initiative and referendum, on the voice of the people.

Mark Mickelson and I are very different repealers. Mickelson ignores the Constitution and corruption; I pay close attention to both, defending the former and fighting the latter. Mickelson disdains the voice of the people, because he sees himself as separate from and above the people. I respect the voice of the people because I recognize that I am one of the people. I challenge our voice only when something higher—in this case, the First Amendment—says our voice has erred.

The judge has spoken. IM 24 is dead. I have thwarted the voice of the people… to protect the voice of all of the people. I invite your civil protest.