Among other things, my lawsuit against South Dakota’s excessive restrictions on ballot questions (SD Voice v. Noem II, heard December 9 by U.S. District Judge Charles Kornmann here in Aberdeen) seeks to overturn the one-year deadline for submitting statewide initiative petitions. I contend that requiring citizens to collect the necessary signatures to place an initiative on the ballot an entire year before the election unfairly burdens our exercise of that constitutional right. The state’s primary response has been that the Secretary of State is too busy during an election year to accept new initiative petitions.
But when my attorney, Jim Leach, asked the Director of the Division of Elections and the defense’s star witness, Kea Warne, if the Secretary of State’s office would be able to handle initiative petitions submitted as late as June during the election year, Warne said yes.
Let’s back up and work through the testimony.
I was the first witness to speak to the one-year deadline. Under examination by Leach*, I explained that, beyond the practical disadvantage of denying us several months in which to educate voters and collect signatures, the one-year deadline hinders the ability of citizens to exercise their right to initiate laws and constitutional amendments in two important ways. First, it’s easier to get signatures during an election year because more people are paying more attention to Legislative issues. Second, forcing citizens to submit initiative petitions by November of 2019 denies them the opportunity to float initiatives in response to actions or inactions of the 2020 Legislature when the issues are most ripe.
I cited industrial hemp as an example. Many voters are watching the Legislature for action on hemp in 2020. If the Legislature fails to pass a hemp bill, many voters will be inclined to put the issue on the ballot and let voters decide it. However, current law requires those interested hemp advocates to wait until November 2020 just to circulate a petition and makes voters wait until 2022 to vote on it. The one-year deadline denies advocates the opportunity to speak out and petition on important issues like hemp when they are most prominent in voters’ minds.
On cross-examination, Assistant Attorney General Holly Farris, assigned the unenviable task of defending the state’s oppressive ballot question laws, asked me if people disappointed with the 2020 Legislature could still refer laws to a statewide vote in 2020. I said sure, but that only applies to laws the Legislature passes. We can’t refer laws that don’t pass. The one-year initiative deadline prevents us from acting in a timely fashion on issues the Legislature fails to address.
Leach also asked me about other states’ initiative petition deadlines. I noted that at least seventeen states accept initiative petitions during the election year. In 2020, North Dakota’s Secretary of State takes initiative petitions through July 6. In Colorado, the deadline is August 3.
Farris brought Warne to the stand to list all the duties the Secretary of State’s office has to carry out during an election year. Warne talked about preparing and validating candidate petitions, printing and distributing ballots, training local election officials, staging run-off elections after the primary, and other tasks. In an apparent response to my note about other states’ being able to process initiative petitions during an election year, Warne noted that South Dakota has one of the smallest state election staffs (Warne said she supervises four election workers in elections; she said the office has fourteen staff total) and can only afford to dedicate two hours each day to petition validation. In 2018, the Warne’s office needed over five months, until April 16, to process eight initiative petitions; in 2016, the office processed ten initiative petitions by February 3 thanks to hiring temporary staff. Warne testified that forcing the Secretary’s small staff to do that detailed work any closer to the general election could cause them to fail to meet certain federal guidelines, like offering 46 days of absentee voting for overseas soldiers.
Judge Charles Kornmann interrupted Warne’s testimony on the inconvenience of reviewing petitions during an election year to say he is “skeptical that’s a valid defense.” On cross-examination, Warne gave good reason for such skepticism.
On questioning from Leach, Warne acknowledged that while the Secretary’s office calculates the total number of signatures on an initiative petition, it only validates a much smaller random sample of signatures determined by a statistical formula. Leach noted that on petition for Initiated Measure 26, the prescription price drug cap that Big Pharma spent millions keeping off the 2018 ballot, the state checked only 710 signatures (out of the 22K+ signatures calculated to have been submitted). Warne acknowledged that in 2015, the Secretary of State’s office processed two statewide referendum petitions in two days. (Warne and then Secretary Shantel Krebs provided same-day validation on my 2015 SB 69 petition; they verified the youth minimum wage petition by mid-afternoon the next day.) Warne acknowledged that back before 2009, her office managed to process many initiative petitions during election years (pre-2009, the deadline was first Tuesday in April; pre-2006, it was first Tuesday in May).
Leach asked Warne about the impact of Libertarians v. Krebs, a case which found that a late March deadline for new parties to submit petitions of organization and candidacy was unconstitutionally early. That’s four and a half months more than initiative petitioners are given to get on the ballot, and even that was thrown out in federal court, because, Judge Lawrence Piersol ruled, it denied third parties the chance to “capitalize on the disaffected group of voters created only after the major parties platform and candidates are known.” Leach noted that an employee of the Secretary’s office had offered similar testimony in that trial about the burdens the state would face in managing elections if third parties were given a later deadline. Leach asked Warne if she was that employee; she said she was. Leach asked if the Secretary of State’s office had managed to comply with the changes to the law (including allowing new alternative parties to organize as late as July 1 and file candidate nominations as late as August) forced by Libertarians v. Krebs; Warne said it has.
Leach pointed out that 2019 House Bill 1094, the other major legislation our lawsuit is trying to repeal, imposes new requirements on the Secretary of State’s office. He asked if the office will be able to comply with those new requirements; Warne said yes.
Leach then asked, if this lawsuit is successful and the initiative petition deadline is moved back to June, will the Secretary’s office comply with that new deadline? Warne said yes.
Farris attempted to redirect, asking Warne to acknowledge that allowing later petition submissions could increase costs, decrease time to focus on petition verification, and put “accuracy and efficiency” at risk. Farris also noted for Warne’s acknowledgment that the federal requirement of 46 days of absentee voting for overseas soldiers didn’t exist before 2009, when we moved the initiative deadline back to one year prior to the election.
Leach re-redirected, citing Warne’s testimony about hiring additional temporary staff, and asked again if the Secretary of State’s office would comply with laws setting a later deadline. Warne said yes.
In his closing remarks, Judge Kornmann repeated his skepticism about the state’s defense of the one-year deadline. Cost to the state, said Judge Kornmann, does not justify unconstitutional action.
Judge Kornmann promised a ruling by January 2.
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*Note from the Witness: I recognize that I do not report my own testimony as effectively as I can report the testimony of others. On these rare occasions when I have the privilege of sitting in front of the bar, I take copious notes on the statements of the witnesses, the lawyers, and the judge. However, when I take my oath and speak from the big chair next to the judge, I don’t bring my notepad. I’m focused on listening and responding truthfully to the questions, not recording my answers. For a full picture of my testimony, you’ll have to ask someone else who was sitting in the courtroom, or [UPDATE 2020.03.20] read the full courtroom transcript!