Two really funny things happened yesterday with regards to the South Dakota Republican Party’s effort to restrict your initiative and referendum rights.
First, the Attorney General’s office notified the U.S. District Court of South Dakota that intends to appeal Judge Charles Kornmann’s ruling against 2019 HB 1094, the unconstitutional circulator registry and badging law, to the Eighth U.S. Circuit Court of Appeals:
The state did not appeal its loss last year in SD Voice v. Noem I, in which Judge Kornmann overturned Initiated Measure 24, the unconstitutional ban on out-of-state contributions to ballot question campaigns. Either Attorney General Jason Ravsnborg is more keenly interested in defending the Legislature’s bad ideas than in fighting to protect measures approved by the general electorate, or Ravnsborg is willing to stand my dunking on him in court once but not twice.
But on the same day, two Republican legislators filed a bill that may moot the appeal. Senator Jim Stalzer (R-11/Sioux Falls) and Representative Jon Hansen (R-25/Dell Rapids), the guy who made the state’s second loss in court possible by writing 2019 HB 1094, have filed Senate Bill 180, a revised version of last year’s circulator registry and badging bill.
SB 180 does the same things as HB 1094: it requires people circulating ballot question petitions to register with the Secretary of State before circulating; surrender their name, physical address, phone number, e-mail address, and other personal information to a public database; and wear a badge with a personally identifying identification number any time they circulate their petitions.
But this year’s bill has two key differences:
- SB 180 abandons the broad HB 1094 definition of “circulator” that criminalized speaking out in favor of a ballot measure petition drive without registering. That definition, which mentioned “soliciting” signatures, was a key part of Judge Kornmann’s ruling against HB 1094. SB 180 attempts to narrow the definition of “solicit” to include only individuals in the physical presence of a circulator with petitions in hand.
- SB 180 applies all of its restrictions solely to paid circulators. SB 180 imposes no new burdens on volunteer circulators.
Stalzer and Hansen are still committing the content discrimination Judge Kornmann found in last year’s circulator registry and badging. SB 180 imposes burdens on people advocating ballot measures, but it imposes no burdens on people paid to oppose and sabotage the circulation of ballot measures, like the professional petition blockers hired by payday lenders in 2015 to harass circulators like Miller Cannizzaro and stop them from getting signatures on the 36% payday loan rate cap. If there is any problem in South Dakota’s initiative and referendum petition process, it is the interference of paid thugs like those who fight to prevent South Dakotans from signing petitions and voting. SB 180 ignores that very real problem and continues the ruling party’s discrimination against citizens promoting the vital check and balance of ballot measures on the Legislature.
But Senate Bill 180 agrees with Judge Kornmann’s ruling that last year’s measure went too far in restricting the core political speech of grassroots South Dakotans. SB 180 agrees that volunteers should not have to register or pay a fee or wear a badge to participate in a petition drive. SB 180 agrees that the circulator affidavit, added to the process in 2018, is unnecessary paperwork: SB 180 repeals that affidavit, just as Senator Reynold Nesiba’s SB 112 would do.
If the Legislature passes SB 180, it writes a substantially new version of the law that Judge Kornmann overturned and that the Attorney General wants to reinstate through appeal. By the time this appeal works through the courts (it could easily take over a year), petitioners could already be in the field for the 2022 election cycle, circulating petitions under SB 180’s regime of registry and badging for paid circulators but not for volunteer circulators. Trying to patch the overbroad requirements of 2019 HB 1094 onto the revisions made by 2020 SB 180 would be a mess.
If the A.G., Stalzer, and Hansen are coordinating their efforts at all, perhaps they think they can pursue a both-and strategy: get some form of a circulator registry and badging system back into effect, at least for paid circulators (who played a big role in getting the two marijuana measures on the 2020 ballot), then throw the dice in court to see if they can persuade a panel of judges to expand those burdens to all circulators, paid or volunteer.
But Judge Kornmann’s ruling on 2019 HB 1094 was pretty clear and well-grounded in case law. Making citizens pre-register with the state and wear ID badges to engage in political speech violates the First Amendment. Rep. Hansen appears to have read the ruling and recognized that case law with SB 180.
The state will lose its appeal and lose more money on it; the state should cut its losses, let SB 180 run its course… and then prepare for the big-money petition professionals to take that restriction to court.