Senate Bill 180, the revised registry and badging scheme for paid ballot question petition circulators, passed House Local Government on Tuesday with one significant amendment. Realizing that his plan still violated paid circulators’ right to anonymity by forcing them to wear badges with identification numbers tied to personal contact information in a public database, Senator Jim Stalzer (R-11/Sioux Falls) Tuesday asked House Local Government to remove the circulator ID number from the badges SB 180 will require paid circulators and their helpers to wear while circulating. Removing that identifying information from the badge removes one of the primary problems that made the circulator registry and badging program passed last year unconstitutional.
Senator Stalzer told House Local Government that Speaker G. Mark Mickelson‘s 2018 HB 1196 imposed some “pretty onerous requirements” on petition circulators. Those requirements included forcing circulators to hand out their names and contact information to petition signers and to complete a vague, legally perilous, and time-consuming circulator affidavit. He said that he and Representative Jon Hansen put forward 2019 HB 1094, the original circulator registry and badging scheme, to make life easier for circulators.
Stalzer says something really important there. He says Mickelson’s 2018 burdens on circulators were more burdensome than Stalzer and Hansen’s 2019 burdens on circulators. Stalzer reminded the committee that his and Hansen’s first attempt was overturned by Judge Charles Kornmann in SD Voice V. Noem II (2020) as unconstitutional for many reasons. If the 2019 burdens were onerous enough to violate the Constitution, then the 2018 burdens—which are still in effect, but which SB 180 mostly repeals—also violate the Constitution.
Stalzer noted that the state has appealed the HB 1094 decision and said “if we win the lawsuit—or when we win the lawsuit in the Eighth Circuit Court of Appeals,” SB 180 will be in place to make the circulator registry and badges more acceptable.
Now I’m a little confused as to why Stalzer and Hansen would seek to amend their original circulator registry and badging burdens if they think an appeal victory is when not if. Stalzer himself cited the Eighth Circuit’s recent Calzone v. Missouri (2019) decision, which suggests the Eighth Circuit will uphold the South Dakota U.S. District court’s ruling against 2019 HB 1094. In Calzone v. Missouri, the Eighth Circuit overturned a lower court decision and declared that the state cannot force volunteers to register, pay fees, file updates, publicly disclose their identities, and face criminal penalties for failing to do so before or while engaging in political speech. Calzone v. Missouri deals with lobbying, not circulating petitions, but Stalzer and Hansen based their original circulator registry and badging scheme on an analogy to lobbyists, and the Eighth Circuit (where the state is appealing SD Voice v. Noem II) held that the state’s professed interests in “sharing information about advocacy activities in order to prevent actual or apparent public corruption” and “having the world know who is trying to influence the work of the General Assembly” do not justify subjecting lobbyists to pre-registration and forced disclosure. If the state cannot so burden volunteer lobbyists, it cannot so burden volunteer petition circulators.
Stalzer said 2020 SB 180 is based directly on Judge Kornmann’s analysis of 2019 HB 1094. He said SB 180 redefines “circulator” using the guidelines that Judge Kornmann used. But it wasn’t until Tuesday that Stalzer got with Kornmann’s program and offered the amendment to remove the circulator ID number from the paid-circulator badges.
Stalzer handed out a letter from Attorney General Jason Ravnsborg explaining that he, the Secretary of State, and the Governor couldn’t come testify for SB 180 due to the ongoing litigation in SD Voice v. Noem II (what? why let that stop you? I’m online speaking about it!) but asserting that “they were all involved in the process” of bringing SB 180 to the Legislature.
Representative Jon Hansen testified to House Local Government to explain the distinction between volunteer and paid circulators. Hansen acknowledged that his 2019 badging plan overreached because volunteer circulators aren’t coming to South Dakota to violate the law. He acknowledged that the only burden we should impose on volunteers is the circulator verification at the bottom of each petition sheet. He said the only abuses we see in the process are by paid out-of-state circulators; SB 180 simply ensures “transparency” and “the rule of law” by making sure that we know who’s being paid to influence South Dakota laws and that all such paid influencers are South Dakota residents.
Big Pharma lobbyist Bill Peterson testified for SB 180. He slightly misread this one line from the Supreme Court’s Buckley v. ACLF (1999): “States have considerable leeway to protect the integrity and reliability of the ballot-initiative process.” Peterson evidently did not read the rest of that important case, which figured centrally in Judge Kornmann’s overturning of the 2019 circulator registry and badges.
David Owen expressed the Chamber of Commerce’s support for SB 180. He said that his people “for the most part think this process stinks” because they have to fund campaigns to fight out-of-state interests, but he said the public likes initiatives, as demonstrated by their higher participation on ballot question votes than on votes for some constitutional offices. Interestingly, Owen reminded the committee that the Chamber “supports the right of out-of-state people to be here,” which calls into question the core professed motivation of SB 180, to catch out-of-staters violating our residency requirement. Owen also acknowledged that regulating the petition process can do the same harm as regulating business: “Are we trying to regulate the process or are we trying to do away with it?” Owen said “we went too far” with recent regulations on the ballot question process and said SB 180 is “good clean-up.”
Tonchi Weaver of Citizens for Liberty spoke in opposition to SB 180. Weaver spoke of circulating petitions as a citizen’s duty and right. She acknowledged that SB 180 is better than current law but it’s still not good. She said “the spectre of the database” still puts circulators’ personal information at risk and said the penalties for inadvertent violations of SB 180’s rules fall unfairly on petition signers rather than the circulators. Weaver said she would fully support simply repealing the circulator affidavit.
Rep. Hansen rebutted that asking paid circulators for their information up front will avoid lots of private investigation and litigation to enforce the circulator residency law. Hansen said nothing about why we don’t apply a residency requirement to the lobbyists who come to testify for anti-vaccine legislation, anti-transgender legislation, and other legislation that Rep. Hansen likes.
In committee questioning, Rep. Hansen gave a confusing response on the impact of SB 180 on the pending SD Voice v Noem II litigation, saying that changing the law will somehow put the state in a better position in its appeal to preserve the existing law. That analysis makes no sense: in offering SB 180 as an amendment based on Judge Kornmann’s ruling to soften the excessive burdens of 2019 HB 1094, Hansen and Stalzer are underscoring that Judge Kornmann was right and that the Eighth Circuit should reject the state’s appeal.
During committee discussion, Representative and lawyer Ryan Cwach said SB 180 is still unconstitutional in imposing viewpoint discrimination on petition proponents but not opponents. He jumped on Peterson’s reference to Buckley and gave the committee the thrust of the case, saying that SB 180’s registry requires more disclosure than the Colorado law that failed the Buckley test. He said passing SB 180 while the state appeals the existing statute only confuses the picture; thus, Cwach advocated just leaving the law alone and letting the appeal work through the courts.
Cwach drew Reps. Sullivan, Mullaly, and Frye-Mueller with him to the nay side, but nine committee members voted to send SB 180 as amended to the House floor.