Our victory in SD Voice v. Noem II (and that’s not the editorial we—the judge’s ruling in my favor was a win for all South Dakotans and for our right to petition and vote) remains incomplete. My lawyer Jim Leach and I successfully argued that forcing ballot question petition circulators to pre-register with the state and wear ID badges while collecting signatures is unconstitutional, and overturning that odious law is an important victory for our right to initiate and refer laws to a public vote.
However, Judge Charles Kornmann’s January 9 ruling left out one important part of our challenge to the South Dakota Legislature’s effort to stifle initiative rights. Our first four causes of action dealt with the unconstitutionality of last year’s House Bill 1094, the circulator registry and badging law. But our fifth and final cause of action dealt with a slightly older law, the requirement that citizens submit initiative petitions a full twelve months before the general election. (The initiative petition deadline used to be the first Tuesday in May, six months before the election; the Legislature moved that deadline ahead to the first Tuesday in April in 2006, then all the way up twelve months before the election in 2009.) We argued in court that such an early deadline burdens citizen rights without serving any compelling state interests, and I got the impression that my attorney got the Secretary of State’s office to confirm that position from the witness stand.
The January 9 ruling said nothing about the twelve-month initiative petition deadline. I didn’t want to crow about that omission, because I didn’t know why the judge didn’t mention that fifth cause of action. It seemed possible that, since the one-year deadline statute rests in different statutes from HB 1094 and because our argument against it invoked some different case law (specifically Libertarians v. Krebs, which found it unconstitutional to require new political parties to petition for ballot access no later than seven months before the election), the court may have wanted to issue separate rulings. Maybe the judge found the deadline issue less clear-cut than the circulator registry and badges and needed more time to read and analyze precedential cases.
My attorney filed a motion saying, basically, Hey, Judge! What about the petition deadline? The state responded to our motion with a quibble about the federal rules we cited to justify our request but overall saying, basically, Yeah, we’d like to know, too—please rule on the petition deadline.
On Friday, January 24, Judge Kornmann responded with this single-sentence order:
Plaintiffs’ Motion Requesting Court to Rule on Plaintiffs’ Fifth Cause of Action, Doc.46, is denied [Judge Charles Kornmann, Order, SD Voice v. Noem II, 2020.01.24].
In my meager legal experience, I can’t recall an instance where a judge simply declined to rule on a core issue raised in a lawsuit. My lawyer has over forty years of legal experience, but he too is having trouble coming up with a comparable instance of a judge exercising what I may best describe as a pocket veto.
The state’s response to our motion indicates the state would like a judicial answer on this issue as much as we would. The state has good reason to seek a clear judicial opinion, yea or nay, to make sure it is properly balancing its interest in efficient election management with citizens’ free exercise of their constitutional rights.
But as it stands, SD Voice v. Noem II provides no firm guidance to the state or to future litigants who have an interest in South Dakota’s initiative petition deadlines.