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Hansen Says Judge Should Uphold HB 1094 Because Bigger Government Is Good

For commentary on SD Voice’s lawsuit against the state to overturn multiple oppressive anti-ballot question laws, that Sioux Falls paper calls not the plaintiff (but they quote the complaint twice, so who’s complaining?), not the defendants (Governor Noem was too busy, I suspect, composing just the right bushwah to welcome another unqualified flunky to her administration to pay attention to actual litigation challenging actual law), but Representative Jon Hansen (R-25/Dell Rapids), the architect of some of the unconstitutional statutes that this lawsuit asks a federal judge to overturn.

Hansen deserves some comment space, since he is named in the complaint, not as a defendant, but as a source of evidence that laws like Hansen’s House Bill 1094 are part of an unjustifiable partisan power grab that discriminates against disfavored speech. Here’s what Hansen tells the paper:

In an email Monday night, Hansen said the court should uphold the law.

“It’s illegal for non-South Dakota residents to circulate our petitions, but lawless, out-of-state petition circulators have been coming to South Dakota and circulating petitions in direct violation of South Dakota law,” he said. “HB 1094 helps to ensure that our initiative and referendum process will remain a grassroots process for South Dakotans only, and not for law breaking out-of-state political hacks and special interests” [Jonathan Ellis, “Lawsuit Seeks to Invalidate New Law on Ballot Measures,” that Sioux Falls paper, 2019.07.29].

Now Hansen won’t be arguing in court; he is a lawyer, but again, he’s not a defendant. So his words to the press and to the public have no bearing on the actual legal and constitutional arguments that the judge must weigh.

If Hansen’s press response suggests the legal defense he would advise (and Attorney General Jason Ravnsborg did rely on arguments from the sponsor of the last bad law he tried to defend in court), we could read this strategy:

  1. Concede that the statutes challenged infringe on core political speech, as demonstrated by the plaintiffs.
  2. Argue that the First Amendment must give way to the state’s compelling interest in keeping outsiders from influencing South Dakota politics.

If that’s the strategy, I’ll offer A.G. Ravnsborg my own free advice: don’t do it. Suggesting that big government has some interest in imposing onerous regulations on free speech for some vague and untested notion of protecting South Dakotans from outside influence indicates Hansen didn’t read what happened when the state made that argument trying to defend IM 24.

It also suggests Hansen hasn’t read the complaint, which says nothing about the impact of the statutes challenged on out-of-state interests and focuses entirely on the harm they do to the very grassroots South Dakotans whom Hansen pretends to defend. Hansen actually reinforces the plaintiffs’ argument that the state already has laws narrowly tailored to protect the initiative process (see Complaint, paragraphs 46–47). The challenged laws are thus unconstitutionally burdensome surplusage.

Hansen’s response also suggests he hasn’t read his own party’s platform. The SDGOP says a lot of warm fuzzy things about the fundamental principles of the Constitution and the need to limit government. Senator Stace Nelson, who isn’t even a degree-toting lawyer like young Representative Hansen, sees right off the bat that South Dakota’s laws against petition circulators runs counter to the Constitution and individual rights his party cherishes:

I’m not sure what’s more topsy-turvy: the Senate’s purest conservative saying I’m right, or conservative Republican Jon Hansen jumping to the defense of big government passing law on top of law to crush individual rights. (I’d suggest that maybe Republican Hansen takes a backseat to Lawyer Hansen… but I have a lawyer working for me, so I shouldn’t pick on lawyers like that.)

But hey—I don’t get to see Representative Hansen in court. We have bigger Constitutional fish to fry… and your initiative and referendum rights to protect.

2 Comments

  1. Steve 2019-07-31

    You know, I think the circulator residency requirement Hansen says HB 1094 helps enforce is itself kind of on shaky Constitutional ground. It could be distinguished because of iniative/referendum being different from nomination, or the 8th Circuit precedent could have gone the other way, but the past decade has had a lot of Federal caselaw invalidating restrictions on paid and non-resident petition circulators for candidate petitions.

  2. Cory Allen Heidelberger Post author | 2019-08-01

    Steve, you may be right. We aren’t challenging the residency requirement directly, but if the state appeals to that requirement, as does Hansen, as the justification for this law, we may have to take a few swings at the concept.

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