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Judge Exercises Pocket Veto on Initiative Petition Deadline Question

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.

6 Comments

  1. David Owen, South Dakota Chamber of Commerce 2020-01-29

    The deadline was moved to the current date to allow the legislature to see what had been placed on the ballot and to allow for further debate and possible resolution of issues urgent enough to have addressed using the initiative process.

    Seeking more discussion – a good thing.

  2. Donald Pay 2020-01-29

    I don’t know about the legal niceties, but do you always need a judge to figure out the answer? The Legislature just got slapped down big league on a good chunk of stupid and unconstitutional bureaucracy, but there is a lot of stupid and unconstitutional bureaucracy that remains on the statute books. Deadlines are set, mostly, to provide for all the unnecessary bureaucracy. There was no fact basis on which to rule on that bureaucracy. It was not addressed in the lawsuit. There has to be another step, another lawsuit, addressing the remaining bureaucracy to get at the deadline question. Or you have to address it through a bill, a constitutional amendment or an initiated measure.

    I think Kornmann was saying, “Get your poop in a group, Legislature, and stop playing games.” Sure, you need some time to get initiatives in proper form. A little up-front work on a proposal does that, but you don’t need all this time and such an extended time to do that.

  3. Cory Allen Heidelberger Post author | 2020-01-29

    David, yes, seeking more discussion is always good. But the too-early deadline favors the Legislature over the people. The Legislature has all the opportunity it needs to discuss issues. A later deadline allows the public to give the Legislature more time to resolve an issue before we resort to putting the issue to a public vote.

    If you told me in 2019 that the 2020 Legislature was going to fix an issue, I’d be happy to wait a bit on my initiative petition drive and see if they follow through. But telling citizens to go through the stress and expense of a petition drive just to get the Legislature’s attention and to secure quite possibly only a partial solution seems unfair. Let legislators discuss all they want, but if they can’t resolve an issue by the time the election year rolls around, why not give citizens three months after that latest Legislative failure to take matters into their own hands and put the issue to a vote?

  4. Cory Allen Heidelberger Post author | 2020-01-29

    But Donald, our arguments and testimony did address that bureaucracy, in much the same terms that you give in your last paragraph. What would another lawsuit look like that wouldn’t replicate what we’ve already put before the court?

  5. Donald Pay 2020-01-29

    I beg your pardon, Mr. Owen, but the South Dakota Constitution does not say that “discussion” with the Legislature is required. In fact the legislative power of The People is reserved to The People, not the Legislature, and certainly not to the special interests you represent. It is set up to be separate from the Legislature for a reason: to keep special interests the hell out of The People’s process.

    Until the mid-1980s the state law required the Legislature to pass a petitioned initiated measure as is. Get your head around that, Mr. Owen. Thus, it would become law and no vote was required. In the alternative a Joint Resolution was used to put any initiative measure on the ballot, and the people would decide at the next general election. Deadlines at that time were different because the legislature met every 2 years, and because they had set it up to PASS A PETITIONED INITIATIVE AS IS, or put it on the ballot.

    Have you got your head around that. Now think about the following. A petitioned initiative isn’t there to generate “discussion,” just as the Legislature doesn’t exist to generate “discussion.” There is nothing in the SD Constitution that says anything about “discussion” being the result of a petitioned initiative, just as their isn’t anything there about the end result of the Legislature generating “discussion.” The goal of both legislative tracks is to pass laws necessary for the State of South Dakota.

    When the Legislature went to annual sessions, the old deadlines were kept. Eventually the Legislature got around to figuring out they could modernize the process and de-bureaucratize it. There were a number of reasons. The Legislature did not want to be involved in the initiative, for one. They had enough on their plate to dink around listening to a bunch of citizens make a pitch for something that they had to enact or to put on the ballot. I was at some of the Legislative hearings on those Joint Resolutions, and the Legislature was not in any mood for “discussion.” Just the opposite. They threatened to two cases to kill those Joint Resolutions, thus violating the Constitution. I was involved in 20 years of Legislative sessions and there was no serious discussion. We even put some of our initiatives up for votes as bills in the Legislature. Did they want to discuss them? HELL NO! Their beef about that was: why are you bringing these bills when you are just going to put them on the ballot. So, Mr. Owen, stop B.S.-ing here on Dakota Free Press. That may work on the ciphers in the Legislature, but it doesn’t pass the smell test.

    Since the Constitution makes the Legislature irrelevant to the initiative process, their part in the process is not needed or wanted.

  6. leslie 2020-01-31

    Disappointing certainly Cory. Likely the cranky judge missed it in overall consideration and has likely taken Republican heat in the state so ignoring it is easier. Specific focused factual findings may be necessary in subsequent litigation. Litigation is never an easy or efficient resolution so Republicans usually take great care to force little guys to carry a very heavy burden. It is what just happened in the Trump impeachment trial. He isn’t paying legal fees. His lawyers were conflicted (Cippolone sat in with Bolton and Trump says the Bolton manuscript, and Sekulow’s at least $65 M in questionable charitable dollars). In SD Kristi has massive input from lawyers like RAGA and even local lawyers contracting with the state). Horsepower, as has been said before.

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