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Hansen Takes the Stand to Defend HB 1094

I worried a bit about facing Representative Jon Hansen in court last month. After all, Hansen is a lawyer, a legislator, and the author of 2019 House Bill 1094, one of the laws that I’m suing to overturn as unconstitutional. If anyone should be able to clean my legal clock in this case, it’s Jon Hansen.

Sometimes I worry too much. Representative Hansen didn’t support the constitutionality of his bill in the federal courthouse in Aberdeen on December 9 any better than he did in the press last summer.

A casual observer might have had trouble distinguishing Hansen and me in the courtroom. We’re both stringy fellows. We both wore our thinning hair buzzed short, with whiskers of similar stubbly length—his was maybe a millimeter longer than mine. We both wore dark blue suits. In defiance of political expectations, Hansen wore a dark blue tie, while I hid my shirt buttons behind red. (For kicks, I wore my dad’s old cufflinks for the first time—thanks, Dad!)

My attorney Jim Leach subpoenaed Hansen to come to court to testify in person about some things he said in a deposition we took on November 5 in Pierre to learn more about HB 1094, his measure requiring anyone wishing to collect or solicit signatures for ballot question petitions to first register their names, phone numbers, home addresses, occupation, e-mail addresses, and other person information with the state before circulating petitions and wear state-issued identification badges while collecting signatures. In that deposition, Representative Hansen said he wrote HB 1094 with well-connected Pierre lobbyists Will Mortenson and Matt McCaulley. Hansen repeated on the stand on December 9 that he’d had the help of two other people in drafting HB 1094. Judge Charles Kornmann, a former long-time lobbyist in our Capitol, asked if those helpers were from the Legislative Research Council. No, Hansen said, they were two lobbyists.

We also asked Hansen to confirm that he meant what he said in this widely circulated AP article, as it appeared on June 19, 2019, in the Rapid City Journal:

Republican Rep. Jon Hansen of Dell Rapids, sponsor of House Bill 1094, said a South Dakota law that only says residents can circulate petitions is being “trampled on by professional out-of-state petition circulators who are trying to bring their California and Massachusetts liberal agendas” to the state. He said he believes Heidelberger, a former Democratic legislative candidate, doesn’t like the measure because it keeps away Heidelberger’s “out-of-state liberal allies” [“Blogger Wants to Roll Back Initiative Restrictions,” AP via Rapid City Journal, 2019.06.19].

Asked in his deposition if the first half of that passage was an accurate quotation, Hansen said, “I don’t remember saying that, but I don’t have—specifically, but  I don’t have any reason to believe that it’s not accurate.” He cautiously accepted the second half as his words as well: “Again, I just remember the general interview. I don’t remember the specific words that I used, but it strikes me as accurate when I read it back.” Hansen similarly affirmed the accuracy of the June AP quote under my attorney’s initial questioning on the stand last week.

Since Hansen was there, and since the state didn’t have any better arguments, Assistant Attorney General Holly Farris asked Hansen to talk about his experience challenging Initiated Measure 26, the prescription drug price cap initiative that Big Pharma spent over $4.2 million (see 2018 pre-primary and pre-general campaign finance reports) to block from coming to a public vote in 2018. Hansen testified that the firm he worked for (HB 1094 co-drafter Matt McCaulley’s Redstone Law Firm in Sioux Falls) hired law firms in other states to track down IM 26 petition circulators. Hansen said that time-consuming search found four to six circulators who, when found during the challenge period, lived outside South Dakota. Hansen noted that his firm won the petition challenge in court on summary judgment before it was able to depose those alleged out-of-state circulators. Nonetheless, Hansen testified that the circulator residency requirement was violated repeatedly on IM 26. When Farris asked how HB 1094 helps the petition challenge process, Hansen said that the circulator registry and badging requirements encourage transparency and compliance up-front in the petition circulation process.

Cross-examining Hansen’s testimony for the state, Leach asked Hansen if there have been lots of initiative and referendum petition drives recently. Hansen said yes.

Leach asked Hansen if the problems he alleged happened with just one petition drive, for IM 26. Hansen had to acknowledge that numerical fact.

“And the challenge worked, right” Leach asked.

“Not exactly,” Hansen replied.

(I would have popped out of my chair and shouted, “What the heck do you mean, ‘not exactly’?! Your billionaire corporate clients got exactly what they wanted: IM26 booted off the ballot!” This is why Jim Leach is a lawyer and I’m a blogger.)

Leach asked Hansen if the challenge knocked IM 26 off the ballot. “Through extensive litigation and discovery,” replied Hansen.

(Mr. Hansen, we didn’t ask what it took to make it work. We asked if it worked. The correct answer is yes, the challenge process, as provided by the laws pre-HB 1094, worked. The challenge process met the state’s interest in preventing a petition that you argued was circulated illegally from sullying the ballot. Your pre-registering and badging of circulators isn’t necessary to serve the state’s interest; you’re just trying to save your law firm and your billionaire clients some money by shifting burdens of proof from parties alleging illegal behavior to innocent circulators who break no law as they collect signatures. But again, that’s me practicing blogging and not law. Shut up, Cor, and listen to your lawyer!)

Leach noted that in the June 2019 AP interview, Hansen didn’t say anything about his experience with IM 26 as a motivation for forcing circulators to pre-register and wear badges. Leach noted that Hansen seemed entirely focused on attacking liberals from Massachusetts and California. Hansen said he didn’t remember the specifics, but he noted that IM 26 petition circulation contractor John Adams was from out-of-state (Maryland, I believe) and the main financial backer (AIDS Healthcare Foundation) was from California. When Leach reminded Hansen that IM 22 was backed by a Massachusetts organization and the Marsy’s Law came from California, Hansen claimed to have had no specific knowledge of IM 22 prior to his deposition in November and was too “pre-occupied” while he was at law school to look into Marsy’s Law.

(Your nose may twitch at those claims. Hansen apparently wasn’t too preoccupied once he finished law school to chat with his Republican Legislative pals in the winter of 2017 and recommend a bill on studying campaign finance that served as cover for the repeal of IM 22. It also strains my credulity to think that a South Dakotan with Hansen’s keen interest in the law, the Legislature, and the undue influence of out-of-state special interests would, while studying law, be oblivious to a statewide ballot measure, sponsored by a vanity-driven California billionaire with no legal training, that was condemned by the state bar association he was aspiring to join. But again, shhh—the lawyers are talking.)

Leach tried to pin down Hansen’s motivations: was it what he said about Cory Heidelberger and his out-of-state liberal allies in June, or was it IM 26 and the out-of-state circulators he was claiming now? Hansen said IM 26 was on his mind when he brought HB 1094, and he discussed Big Pharma’s interest during the Legislative debate on HB 1094.

So, Leach asked, your motivation was different from what you told the reporter?

“Maybe in addition,” said Hansen.

—But you can’t swear that you talked about IM 26 to the reporter?

—I can’t swear to any comment in the article.

Hansen seemed more willing to own what he said in that June news article at the beginning of this conversation than when he realized his statements supported the point plaintiffs could make to demonstrate his law violates the Constitution.

Leach got Hansen to acknowledge that the residency requirement for circulators existed prior to HB 1094 and that HB 1094 does not increase the legal penalty for violating that requirement.

Leach asked if there was any need to address violations of the circulator residency requirement before a petition is submitted. Hansen said he disagrees… but he did not explain what he meant.

(I would suggest Hansen has no basis on which to disagree: violations of petition law don’t exist without a petition. A petition doesn’t exist as an actionable legal document until it is submitted complete with signatures.)

Leach asked Hansen to look at the state’s exhibits F, I, and J, South Dakota Administrative Rules 05:02:08:07, 05:02:08:08, and 05:02:08:09, which establish the forms for petitions for initiated laws, referred laws, and initiated constitutional amendments, respectively. Leach asked Hansen to read those forms and acknowledge that, prior to HB 1094, those forms required every circulator to swear under oath that “I am a resident of South Dakota.”

Hansen declined to attest to the veracity of exhibits offered by his law’s own defense team. Hansen said he couldn’t answer, he had just seen the exhibits placed in his hands, and they may have been changed….

(I think I get why Jim Leach doesn’t yell nearly as much as I imagine I would if I were lawyering. Leach recognizes he doesn’t have to pound every nail clean through the board for the judge. Leach recognizes that if the state comes to court trying to save its bacon and presents the judge with exhibits from state law and administrative rule, it’s going to bring the current version of those statutes and rules. Leach recognizes that at the bottom of each of those exhibits, there should be annotations indicating the effective dates of the last changes… which in this case, for the three rules under discussion, was July 30, 2018. And Leach recognizes that the judge likely recognizes all of this and likely recognizes that the only reason a lawyer and legislator is stumble-bumbling around a simple affirmative answer is that the lawyer and legislator recognizes that his affirmative answer about the plain facts before him knock the legs out from his argument that we need his law to achieve the state’s interests. While I write for a public audience where time is fluid and electrons are free, Leach is speaking to an audience of one, the judge, whose time and attention deserve respect.)

Leach asked Hansen what benefit there is to requiring circulators to surrender their addresses to the state at the start of the petition process. Hansen said the requirement ensures circulators are following the law.

Leach asked Hansen if that interest would be satisfied without the public database. Hansen said he disagrees… but again failed to explain why, and not because Leach was cutting him off and rushing ahead.

Leach then brought Hansen to the core of our concern about forcing circulators to register before circulating: that HB 1094’s public circulator registry invites harassment of circulators in their homes, before they’ve collected a single signature. Leach asked Hansen if the circulator registry would allow opponents to go to circulators’ homes to deter them from circulating.

Representative Jon Hansen, sponsor and co-author of 2019 House Bill 1094, hesitated lengthily, then said of this key provision of his law, “I… am… boy…” then gave up and said “yes.”

Then it occurred to Hansen to mention that circulators are “already on the streets” and that harassment could happen there.

But not at their home addresses, said Leach.

Hansen claimed that this year he encountered petitioners who had their addresses on their petitions. Leach noted that any such disclosure this year, pre-HB 1094, would have been voluntary. He asked Hansen if the state can check residency from a confidential database. “Arguably, I suppose,” said Hansen.

(Jon, I know you’re a lawyer and I’m a debater and we both apparently love to argue, but I’ve got to tell you: some basic points aren’t arguable.)

When Leach finished with Hansen, Judge Charles Kornmann asked the witness if the Secretary of State kept a roster of circulators pre-HB 1094. Representative Jon Hansen, who presumes to write laws on the petition circulation process, at first dodged the question, saying the judge would have to ask the Secretary of State’s office. Judge Kornmann asked again, so there’s no roster of circulators? This time, Hansen said no, not during the circulation process.

*     *     *

I hope more than our neckties distinguished Hansen from me on the stand. I hope it was clear to objective observers that I’m just a regular citizen studying the law and pointing out where the state has gone too far in restricting our constitutional rights, while Hansen is struggling to piece together excuses for his efforts on behalf of big special interests to erode our rights.

17 Comments

  1. leslie 2020-01-02

    Yup. GOP SOP. Cheat to win. Major restrictive voting rights strategy Mitch McConnell is squarely behind. Massive voter response is necessary to counter massive Republican cheating obstruction. Eight years running straight thru Obama’s two terms. Absolute corruption and obstruction by the Trump/Putin GOP. And Trump because ys out farmers and Indian nations for their vote. And rightwing white evangelicals and supremacists and Nazis. Whatever it takes to win those some 80K VOTES IN KEY ELECTORAL COLLEGE STATES. This lawsuit faces down that very same behavior led by Thune, Rounds, Dusty and Noem

  2. Debbo 2020-01-02

    So far, so good. We know Kornaman is a sharp guy and Leach and Cory are sharp as Damascus knives. We also know the SDGOP cabal is dull as ancient horseshoe nails. I’m optimistic.

  3. Cory Allen Heidelberger Post author | 2020-01-02

    Well, Debbo, the judge’s ruling should be coming soon. My concern is that, win or lose, Hansen and the Legislature will come back with more attacks on the process. I can’t take every attack to court; pretty soon, I’m going to need a few hundred thousand voters to come help me out by electing legislators who aren’t afraid of letting the people rule.

  4. leslie 2020-01-02

    My 3 articles and comentary on Mitch McConnell supporting my initial post “awaiting moderation” were lost to the cyber universe. I would say Cory’s lawsuit is just as important for SD as is the Kupperman/Bolton/MaGahn fed litigation forcing them to testify, knocking down the corrupt GOP/Trump scandal in the impeachment case. https://m.youtube.com/watch?v=43o3hoye1OY

  5. Bob Newland 2020-01-02

    I am SHOCKED! A legislator caught unprepared!? After bumbling through a session or two in Pierre with a license to break all the china in the store? And this generation of legislators can’t even claim to have been drinking alcohol every night in Pierre. They were too busy praying to god to help them destroy any vestige of justice remaining in SoDak.

  6. leslie 2020-01-02

    A second whistle blower complaint from an IRS employee claims required Pence and Trump annual audits were interfered with by GOP political hacks. Pence dangles as well. https://m.youtube.com/watch?v=aq_cdtGhPyk

    Cory in cufflinks and I hope not, tie clip and well dressed Lawyer Jim Leach are serving as “whistleblowers” with clout in SD.

    We must continue as Dems to stand up to the corrupt Trump dynasty, the SD GOP and Republican voters who silence, obstruct and corrupt democracy EVERY DAY.

  7. Dave Baumeister 2020-01-02

    Cory, if you had been cross-examining Jon Hansen, I have no doubt you would have left him in tears.

  8. Cory Allen Heidelberger Post author | 2020-01-03

    No worries, Leslie—no tie clip. Dad’s old trinket box did not include one. ;-)

  9. Cory Allen Heidelberger Post author | 2020-01-03

    Thanks, Dave! I suspect my attorney would say tears aren’t necessary when the obvious facts will do. And while I don’t know whether I could have gotten any witness to cry, I’m sure I would have gotten Asst. AG Farris to cry “Objection!” quite frequently.

  10. Donald Pay 2020-01-03

    Interesting report. Of course, the residency requirement existed before.

    I guess I have a bit different opinion on all this, though I hope you win the suit based on the dishonesty and sniveling evasiveness with which Rep. Hansen testified. That guy did himself no good.

    I have no problem with a circulator registry of some kind. It should be a voluntary one, because your constitutional right to petition for redress of grievances shouldn’t have to go through a government imprimatur to exercise your rights.

    I’d sign up and wear a badge, because I think that’s a way to establish some additional credibility with people who you are asking to sign. But, there has to be a way to do that in a customer friendly way, ie., quickly. A person’s constitutional rights should not be taken away by clogging up the process with a lot of bureaucracy. It’s the same argument gun owners make. Sure, do your background check, but hurry up about it. The real problem is the inefficiency of the entire process. That is by design, and that is what is unconstitutional.

    I never found that ordinary South Dakota citizens would harass circulators. Circulating a petition is part of the culture and custom of the state. People who live through two or three election cycles expect to be asked to sign a petition. The most blowback I ever got is some choice words, maybe a civilized argument and, at worst, a middle finger. People don’t harass you much on the street, and none at home. So, generally, no, you don’t have to worry about harassment from your neighbors. It’s the paid flunkies of the special interests and politicos who engaged in the harassment. That’s what happened during the nuclear waste fight.

    I’d deal with it with a new statute, making it illegal to harass or intimidate a petition circulator or signer.

  11. Debbo 2020-01-03

    I like this suggestion of Don’s, “making it illegal to harass or intimidate a petition circulator or signer.”

    Doubt the SDGOP would go for it because the harassers would probably be their owner’s guys.

  12. Debbo 2020-01-03

    Idaho GOP is planning on taking more cheap shots at their citizens I&R rights.

    is.gd/vGCYqt

  13. Cory Allen Heidelberger Post author | 2020-01-03

    Donald, do current statutes prevent harassment of circulators? Right now, what action do I have to take against any person on the street to cross the line from civil discourse to prosecutable harassment?

    If a guy is standing outside wearing a Trump shirt, to what extent am I allowed to protest that shirt?

    If a guy is standing outside wearing a Trump shirt and circulating a petition for Neal Tapio, how far can I go in pointing out to him and to people he might solicit for signatures that Trump and Tapio are fascists unfit for office?

  14. Donald Pay 2020-01-04

    Cory, There are no statutes that deal specifically with harassment of circulators of any sort of petition, as far as I know. Of course, there are various other statutes that may come into play, but I don’t think there’s a lot of understanding that it can be an issue. Generally, it hasn’t been, if we are talking about ordinary South Dakota citizens. You don’t want to go after people just because they flip you off. That’s not harassment, and that’s about the worst you might get in nearly all cases where someone disagrees with your position or your candidate. The only harassment/intimidation/threats that I’m aware of came from the paid minions of the special interests or political types who feel themselves attacked by citizens seeking redress of grievances.

    In our case it came from Chem-Nuclear’s paid goon squad, who were trying to scare circulators in an extra-legal way, pretending to be conducting an “investigation.” It scared some of the circulators, but this occurred after the signatures had been submitted to the Secretary of State, so the impact on the process was negligible. Still, we thought it was worth nipping it in the bud, and drafted a bill for introduction in the 1985 session. I think our bill only covered ballot measures, but it should also cover candidate petitions.

    The bill was patterned after a statute protecting voters (SDCL 12-26-12):

    12-26-12. Persecution, threats, or intimidation to influence vote as misdemeanor–Obstruction of voter on way to polls. A person who directly or indirectly, intentionally, by force or violence, or by unlawful arrest, or by any abduction, duress, damage, harm, or loss, or by any forcible or fraudulent contrivance, or by threats to do or employ any of them, or by threats of bringing civil suit or criminal prosecution, withdrawal of customs or dealing in business or trade, or enforcing payment of debts, or by any kind of injury or threat of injury inflicted or to be inflicted on any voter or person to influence any voter, and attempted, done, or threatened, or caused to be attempted, done, or threatened by any person in his own behalf or in behalf of any other person or question voted upon or to be voted upon at any election, for the purpose of preventing, causing, or intimidating a voter to vote or refrain from voting for or against any person or question, or who does or causes to be done any of such things because of a voter having voted or refrained from voting on any such matter, or who intentionally and without lawful authority obstructs, hinders, or delays a voter on his way to any poll where an election is to be held, is guilty of a Class 2 misdemeanor.

  15. Donald Pay 2020-01-04

    Cory, Your other questions bring up interesting situations of competing constitutional rights. If I recall, that was an argument we heard against our approach. Yet, why wouldn’t that also apply to situations involving voters, as well? Why should you have to shut up in a voting line and not spout off about your favorite candidates or curse about the one you are voting against? Why can’t you shout down people at legislative hearings when legislators are hearing testimony on bills? It’s free speech, isn’t it?

    Circulating an initiative, referendum or candidate petition is a quasi-governmental function. With respect to the initiative, it’s like getting legislative signatures on a bill prior to introduction. I suppose you could stand on third floor outside the House Chamber and loudly pontificate on why a legislator shouldn’t become a co-sponsor on particular legislation, but I think you would find yourself ushered out of the Capitol Building if you kept it up too long and too loudly. Maybe you should try it, and see how legislators react.

  16. Cory Allen Heidelberger Post author | 2020-01-07

    Donald, you’re touching on reasoning that could make me support some sort of regulation of speech around petitioners. Petitioning is a governmental function. It is the people attempting to govern their own affairs directly. It is citizens seeking access to the ballot. In a democracy, that’s sacred work. We establish restrictions on free speech around polling places; can we apply similar restrictions around places where folks are trying to write measures onto that sacred ballot?

    But there’s a problem, or an irony, or… something: can we petitioners make a special claim to First Amendment rights and protect our exercise thereof by restricting the First Amendment rights of those who oppose our efforts?

    Or could I look at the scenario from the perspective of opponents and say that if the work of trying to place a measure on the ballot is “sacred” and warrants protection from harassment, then doesn’t protecting the sacred ballot from bad ballot measures (and candidates) deserve just as much First Amendment protection, including the invective I would throw at petitioners and my exhortations to voters not to sign said those foul petitions?

    And if we did pass a law protecting circulators from harassment, would we have to craft that law to also require the circulator to observe certain standards of conduct befitting a carrier of a sacred petition?

  17. Donald Pay 2020-01-08

    Cory said: “We establish restrictions on free speech around polling places; can we apply similar restrictions around places where folks are trying to write measures onto that sacred ballot?”

    There are restrictions on free speech everywhere, not just in the theater or voting booth. Probably, the most un-free speech zone is at a Legislative hearing. You can’t just go into a committee hearing room and start spouting off on why a bill should be supported or defeated. You have to wait for that bill to be called up and then to be recognized by the chairman, who might say something like, “Keep it brief, we’ve got a lot of bills to go through today.” Time constraints may limit how many people can testify on a bill and how long they can speak. Go out on the city streets and scream for hours about little green men who invaded the Legislature abusing your free speech. That’s going to end badly. Your free speech will be curtailed, and you will be under a mental health hold. The fact is we have norms and rules for how free speech can be conducted.

    Cory says: “…can we petitioners make a special claim to First Amendment rights and protect our exercise thereof by restricting the First Amendment rights of those who oppose our efforts?”

    I don’t think there is anything “special” about civilized conduct. Free speech comes with a lot of caveats. Most people understand the restriction on free speech at legislative hearings is necessary for the conduct of Constitutionally mandated business. We don’t stand up and shout our opinions out of turn because if everyone did that nothing would ever get done, including whatever it was that we wanted.

    Taking out a petition, whether on a ballot measure or as a candidate, is a quasi-governmental function. As I have stated, it’s similar to getting signatures of prime sponsors on a bill. Interference in that process at the Legislature would be considered interference in the legislative process. I think there is a statute that would apply to such interference at the Legislature. We’re not talking about a short, civilized argument about the bill, or someone flipping off a Legislator, but threatening or intimidating behavior would not be tolerated.

    Cory said: “And if we did pass a law protecting circulators from harassment, would we have to craft that law to also require the circulator to observe certain standards of conduct befitting a carrier of a sacred petition?”

    I think a standard of conduct wouldn’t be a bad idea, actually. But if you are a rude and obnoxious petition circulator, you won’t be collecting many signatures. People don’t need to be cajoled and brow-beaten into signing. Circulating a petition, I found, makes you a more polite, considerate and empathetic citizen.

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