Stalzer Considers Amending SB 180, But Not Enough to Avoid First Amendment Trouble

Last updated on 2020-02-24

Senate Bill 180, Senator Jim Stalzer’s effort to salvage some shreds of circulator stifling from the unconstitutional wreck of his co-sponsor Representative Jon Hansen‘s 2019 House Bill 1094, got delayed again last week. That delay apparently gave Senator Stalzer time to compose Amendment 180A, which document metadata indicates was created Friday afternoon. Amendment 180A takes my advice and strikes the three semicolons that I found problematic and much more.

SB 180 is ostensibly crafted to target the “monitor/witness” scheme that out-of-state petition mercenaries used in 2015 to evade South Dakota’s circulator residency requirement. Professional circulators from elsewhere would handle the main work of roping signers in and giving the hard sell, then have locals stand next to them to witness the signatures and then sign the circulator oath.

SB 180 tries to prevent our mercenary visitors from hawking petitions by including their highly paid “soliciting” in the definition of circulating and requiring those solicitors to be residents of South Dakota for at least a month before they start circulating, to register with the Secretary of State, and to wear state-issued badges with ID numbers.

SB 180 appears to target only paid circulators, but three semicolons created some ambiguity about whether volunteer circulators would also have to give out ID numbers while circulating. Amendment 180 strikes those semicolonsand the entire requirement that circulators hand their ID numbers to each petition signer.

Buckley v. ACLF (1999) made clear that the state cannot require that petition circulators identify themselves while they are circulating petitions. We as private citizens can certainly refuse to sign the petitions of anonymous circulators if we wish, but the state cannot impose disclosure on circulators because such forced disclosure chills free speech. Judge Charles Kornmann relied heavily on Buckley 1999 when he overturned last year’s circulator and registry bill, 2019 HB 1094.

In removing not just the semicolons but the entire phrases requiring circulator ID numbers on the circulator handouts would remove one unconstitutional provision from SB 180.

Other unconstitutional provisions remain in SB 180 and Amendment 180A.

First, citizens have First Amendment rights whether they are volunteers or paid circulators. The court overturned last year’s circulator registry and badges because forced disclosure before and during circulation chill speech and put circulators at risk of harassment. The registry and badges of SB 180 would have the same effect. SB 180 would affect fewer circulators, but hurting fewer people won’t justify the constitutional hurt in the eyes of the courts.

Even as amended by 180A, the bill would still commit the same viewpoint discrimination that contributed to HB 1094’s failure in court.

To understand what I mean, compare these circulator badges to lobbyist badges. Imagine what would happen if we required paid lobbyists in Pierre to register and wear badges only when they testify in favor of bills. That would be viewpoint discrimination, and that would be unconstitutional.

The only people SB 180 forces to register with the state and wear badges are proponents of ballot measures. Paid opponents, like the professional “blockers” whom the out-of-state payday lenders hired in 2015 to interfere in our petition process by shouting down and intimidating my friends while they circulated rate-cap petitions, aren’t affected by SB 180. When the law puts burdens on people on one side of an issue but not the other, the law is discriminating based on content, and the courts will throw that law out. The court threw out HB 1094‘s registry and badges for that reason; the court will do the same to SB 180’s registry and badges.

In Section 7, Amendment 180A would remove the ballot question committee name from the badge, but the individual ID number remains. So amended, SB 180 would still identify circulators while they circulate. The ID number would be visible to all comers. The ID number and all associated information would be public record. If harassers want to target a paid circulator’s home and family, they just read the badge and search the number on their phones. That forced disclosure puts SB 180 in the same legal jeopardy as last year’s registry and badge bill.

Beyond Constitutional questions, Amendment 180A makes some practical changes to Stalzer and Hansen’s registry and badging scheme.

Other strikes from Sections 9, 11, and 13 remove language about adding multiple circulator names to a petition sheet. That’s a wise change: there’s already too much clutter on petitions. Add lines for multiple circulators, and there won’t be room for signers. Keep it simple: the rule should remain that one sheet has one and only one circulator.

Amendment 180A adds a new requirement to Sections 9, 11, & 13, requiring paid circulators to print their ID numbers on their petition sheets with the circulator oath. That requirement seems redundant: the verification gives name and address; we can find that name and address in the paid circulator database, if we need to.

The change in section 3 removing from the registry application the name of the ballot question committee and replacing it with “the name of the petition sponsor” is problematic. Petitions may have more than one sponsor. As amended, would this law require one particular sponsor’s name? All sponsors’ names? We petitioners are sticklers for following the law. We can’t follow the law exactly if the law speaks only of one sponsor and we have multiple sponsors on a given petition. This amendment either needs to specify “sponsor or sponsors” or it needs to go back to the simpler requirement that the circulator’s registry application include the name of the ballot question committee for whom the circulator will be working.

I share the apparent interest of SB 180’s sponsors in making sure that everyone follows petition law. I may even share their distaste for out-of-state mercenary circulators who bring their manipulative hard-sell tactics here to make a quick buck, not to promote the general welfare. But my experience tells me that the harder we try to regulate the petition process, the more inaccessible we make it for grassroots South Dakotans and the more the process will be dominated by big-money players.

Amendment 180 mitigates but does not reverse the new restrictions SB 180 seeks to impose on political speech. But as the federal courts told South Dakota three times in the past year and will tell us again if the Legislature passes SB 180, the proper remedy to speech we don’t like is not to restrict speech; it’s to encourage more speech. To get more speech, we need to simplify the rules of initiative and referendum so more South Dakotans can participate.

Senate Local Government finally takes up SB 180 at dawn’s early light, 7:45 a.m. Monday, in Capitol Room 412.