I return to the federal courthouse here in Aberdeen tomorrow to argue once again for your freedom of speech. At 10:30 a.m. CST, Judge Charles Kornmann will hear SD Voice and Cory Heidelberger vs. Kristi Noem, Jason Ravnsborg, and Steve Barnett, the second case of that name this year*, challenging the state’s unconstitutional restrictions on the initiative and referendum petition process.
To refresh your memories, I am challenging two main points of state petition law: first, 2019 House Bill 1094, Rep. Jon Hansen’s (R-25/Dell Rapids) circulator badge and registry scheme now mostly encapsulated in SDCL 2-1-1.3–188.8.131.52, and the state’s requirement that initiative petitions be submitted a full year before the election at which you would get to vote on them.
The HB 1094 circulator registry and badging requirements are unconstitutional for several reasons:
- Requiring ballot question proponents to register with the state prior to circulating petitions and wear badges while circulating petitions, while imposing no such requirement on candidates for elected office, other political committees, or opponents of ballot measures, constitutes content-based discrimination against unflavored speakers—in this case, individuals whose liberal, democratic interests conflict with the conservative, anti-democratic preferences of the party in power.
- Requiring individuals to obtain government permission before circulating ballot question petitions is prior restraint of core political speech.
- Requiring petition circulators to submit personal contact information, including physical address, to a state database prior to circulating and to wear an identification badge while circulating violates the right of speakers to enjoy anonymity at the point of speaking, endangers circulators, and chills participation in core political speech.
- HB 1094 requires mere advocates of ballot question petitions—people who may never touch a petition sheet but who encourage others to sign petitions—to register as circulators and wear ID badges while so advocating. HB 1094 imposes no such requirement on people who dissuade others from signing petitions. This requirement is prior restraint and content-based discrimination.
The state’s requirement that initiative petitions be submitted at least twelve months before the general election also violates your constitutional right to participate in political speech. Denying citizens the opportunity to circulate initiative petitions during the election year denies them the opportunity to put petitions before the voters that deal directly with the overreach or underreach of an unresponsive Legislature while such Legislative errors are most timely and fresh in voters’ minds. Citizens wishing to change by initiative some error made by the Legislature in February 2020 must wait until November 2020 just to circulate their petition and until November 2022 to give South Dakotans a chance to vote on the issue.
The twelve-month deadline allows the Legislature, during the Session that intervenes between the petition deadline and the general election, to sabotage petitions by changing the law.
The state claims that the twelve-month deadline gives the Secretary of State much-needed time to handle all sorts of other election-year paperwork. However, at least seventeen other states accept initiative petitions during the election year. Our neighbors in North Dakota can circulate initiative petitions for the 2020 ballot until July 6, 2020. Coloradans have until August 3. Their Secretaries of State have at least as many important election duties to carry out in 2020 as ours, and they are able to process initiative petitions during the election year. In Colorado, initiative petitions require more seven times as many signatures as in South Dakota, yet the Colorado Secretary of State needs less than a quarter of the lead time that South Dakota’s Secretary of State claims to need to review all those petition signatures.
I’ll be busy today reviewing statutes, case law, news articles, and other materials relevant to this case. I take very seriously my duty to defend your rights and the legacy of Father Robert Haire, the Aberdeen priest and populist who helped us write those rights into our state constitution 121 years ago. If you’re in the neighborhood Monday morning, bundle up, shovel your walk, and come to the federal courthouse on 4th Avenue SE. Don’t bring your phone, your Apple Watch, or any other Web-enabled electronics: the marshals downstairs allow no such devices in the building.
- SD Voice v. Noem I was the case I brought to federal court last spring to challenge Initiated Measure 24, former Speaker G. Mark Mickelson’s attempt to ban non-South Dakotans from contributing to ballot question campaigns. U.S. District Judge Charles Kornmann ruled IM 24 unconstitutional.