I’ve said and explained on many occasions that this year’s House Bill 1094, the most egregious provisions of which are now encapsulated in SDCL 2-1-1.3–18.104.22.168, is unconstitutional. Let’s see if a judge agrees:
Today my attorney, James Leach of Rapid City, filed a complaint on behalf of ballot question committee SD Voice and me in the Northern Division of the United States District Court of South Dakota seeking to overturn the most egregious provisions of HB 1094. While we’re at it, we also tackle another bad law used to blunt the power of direct democracy, the absurdly early deadline for filing initiative petitions.
We offer five causes of action against unconstitutional action taken by the state of South Dakota to suppress the people’s right to circulate initiative and referendum petitions:
1. Discrimination Against Disfavored Speakers
HB 1094 requires circulators of ballot question petitions to register with the state, provide personally identifying information, and wear state-issued ID badges while collecting or soliciting signatures (more on that latter verb in Cause for Action #4 below). HB 1094 imposes no such burdens on candidates, candidate committees, political action committees, political parties, or even petition opponents. HB 1094 thus targets the content of speech, burdening citizens who seek to change the law but not those who favor the law as written by the Legislature.
2. Unconstitutional Burdens on the Ballot Measure Process and on the Rights of Citizens to Be Heard by Signing Ballot Measure Petitions
HB 1094 imposes enormous and indefinite paperwork requirements on petition circulators and ballot question sponsors and uses any error, no matter how small, unwitting, or unintentional, to throw out the signatures of potentially thousands of honest voters who want a chance to debate and vote on an important issue. Any compelling interest the state may claim in ensuring the integrity of the petition process is already met by statutes already in force (e.g., SDCL 2-1-10, SDCL 32-3-19) before HB 1094. The circulator registry and badge requirement thus serves solely as unnecessary and unjustified prior restraint of petitioners’ speech.
3. Unconstitutional Burdens on the Ballot Measure Process and on the Rights of Circulators by Public Directory of Petition Circulators
Forcing circulators to submit their personal information to a public registry prior to circulating any petition subjects them to harassment from ballot measure opponents. In 2015, well-funded opponents of a proposed 36% rate cap on payday loans harassed petition sponsor Steve Hildebrand at his place of business. HB 1094’s circulator registry makes it possible for opponents to harass circulators even before they hit the streets with petitions. Requiring petitioners to wear an ID badge and show their state ID number on every petition sheet only exposes them to more harassment. The potential for such harassment and suppression of speech led the United States Supreme Court to overturn a Colorado requirement that petition circulators wear name badges; HB 1094 creates an even greater risk of harassment of circulators.
4. Unconstitutional Restriction of Speech of Non-Circulators Who “Solicit Petition Signatures”
HB 1094 actually forces two kinds of people to register as circulators and wear ID badges: anyone “who circulates, for pay or as a volunteer, petitions or solicits petition signatures from members of the public for the purpose of placing ballot measures on any statewide election ballot.” Circulating petitions—going around to collect signatures—is one thing; “soliciting petition signatures from members of the public” is something else:
77. The “solicits petition signatures” must mean anyone who, although no a petition circulator, asks, advises, or encourages people to sign a petition. This would include Heidelberger’s blog, a newspaper columnist, a person interviewed on radio, an advocacy group that encourages people to sign a petition, anyone who writes a letter to the editor of a newspaper, anyone who comments online in response to a newspaper story, and anyone who posts or respond to a comment on Facebook, Twitter, or other social media.
78. Anyone seeking to do any of these things would need to register as a “petition circulator”—a patently unconstitutional prior and illegitimate restraint on speech, better suited to George Orwell’s 1984 or Aldous Huxley’s Brave New World than to the United States of America.
79. SDCL 2-1-1.9 provides: “A person is guilty of a Class 2 misdemeanor if the person acts as a petition circulator without wearing a badge issued under § 2-1-1.8.”
80. So by in any manner asking, advising, suggesting, or encouraging someone to sign a petition, a person who does not actually circulate petitions, and who has not registered and obtained a badge, commits a crime [James Leach, attorney for plaintiffs, Complaint, SD Voice and Cory Heidelberger v. Governor Kristi Noem, Attorney General Jason Ravnsborg, and Secretary of State Steve Barnett*, Case No. 1:19-cv-01017-CBK, filed 2019.07.29].
And again, HB 1094 discriminates against content by requiring citizens to register and wear badges to encourage petition signing but imposing no such burdens on people and parties who discourage the signing of petitions. These restrictions on disfavored speech violate the First Amendment.
5. Discriminatory and Unduly Burdensome One-Year Requirement for Filing Initiative Petitions with Secretary of State
Our Fifth Cause of Action, the one-year deadline for submission of initiative petitions, does not come from 2019 HB 1094. The initiative petition submission deadline used to be in SDCL 2-1-2, which was replaced and repealed by 2012 Senate Bill 70. 2006 Senate Bill 78 changed the deadline from the first Tuesday in May to the first Tuesday in April. It was changed to one year prior to the election by 2009 House Bill 1184.
This 12-month-early submission requirement denies citizens the chance to initiate measures in response to the Legislature’s action or inaction during an election year. Requiring initiative sponsors to submit their petitions twelve months before the election thus burdens “core political speech” (again, see Buckley v. Am Const. Law Fund, 1999) as surely as the state’s erstwhile requirement that new parties file their formation petitions seven months before the election (I say erstwhile because the state lost that lawsuit, too).
Plaintiffs seek a permanent injunction against the enforcement of all of these unconstitutional laws. Note that the petition deadline is in effect now; the provisions of HB 1094 are slated to take effect July 1, 2020. We’d also like the state to pay us for the trouble of explaining the unconstitutionality of its laws to them and protecting democracy from this governmental overreach.
Once more up to the bench—let’s see what you’ve got this time, Mr. Attorney General.
*We’ll need to distinguish this SD Voice v. Noem et al. from the case with the same players in which we overturned Mark Mickelson’s out-of-state money ban in May.