Shutting down gun stores may not infringe on our Second Amendment rights, but shutting down petition drives violates our First Amendment rights.
No state that I know of has issued any order explicitly forbidding the circulation of petitions. However, I will contend that right now, no civic-minded activist can responsibly engage in an activity that requires people to congregate, hand around papers, and require notaries public to violate social distancing. Conscientious observation of the directives issued by the CDC and state and local officials to prevent the spread of the coronavirus means not circulating paper petitions.
One cannot circulate petitions without endangering oneself and the public. Consider what it takes to circulate a ballot question petition. Referring any of the odious bills passed by the 2020 Legislature requires at least 16,961 signatures… and practically speaking, we know that a petition drive needs a safety margin, so let’s round up to the safe margin of 25,000 signatures. The first step a referendum petitioner would have to take to protect public health would be to purchase 25,000 pens so no signer has to use the same pen as another signer. I’d recommend 25,000 petition sheets so that no signer has to handle the same piece of paper, but some circulator will still have to put each sheet in a signer’s hand. Circulators become disease vectors, contacting hundreds of people. Even if they don’t stand in a crowd (there are no crowds in which to stand), even if they arrange some sort of drive-up scheme with signers separated by at least six feet, circulators still act as a shared point of contact. Encounter one asymptomatic signer, and you as a circulator may infect dozens of people through the rest of the day.
We could minimize circulator contact by mailing petitions to interested voters, but that’s practically impossible. On a good day, direct mail campaigns have a 2% response rate. If we mailed petitions to every registered voter in the state, we’d be lucky to get 11,000 responses, less than half of what we need for a safe margin above the 16,961 minimum.
But even if we had a magic mailing list of 25,000 friendly voters guaranteed to sign our petitions and mail them back (and not lick the envelope, for your mail carrier’s sake!), those voters would have to find someone to witness their signatures and act as the circulator of record. One mailing to one married couple would have to include two sheets: Fred would have to witness Wilma’s signature on one sheet, and Wilma would have to witness Fred’s on a separate sheet.
And before Fred and Wilma and 12,499 other happy couples can mail their petitions back, they all have to get notary seals on their petition sheets. They can’t just mail their petitions back to the referendum sponsor and let the sponsor take the sheets en masse to a notary. Fed and Wilma et al. must present themselves in person to their local notary. Where a normal petition drive has hundreds of circulators around the state visiting their banks and county auditors and other local offices to obtain notary seals, a petition drive counting on individual household cross-witnessing creates 25,000 circulators, all of whom have to get a notary seal. A mail-out/mail-back petition drive increases the chances of coronavirus exposure to notaries a hundred times.
And then we hand all those cootified papers to the Secretary of State. Woe unto Steve and Kea and Christine and Rory!
There would be no constitutional problem with state and local governments telling potential petition circulators and petition signers to stay home if those governments offered some alternative means for citizens to exercise their rights without jeopardizing their fellow citizens and civil servants. We can shut down public gatherings and still exercise freedom of speech on the phone, the radio, and the Internet. We can shut down public polling places as long as we offer voters the opportunity to vote by mail or offer make-up voting days after the pandemic or blizzard or other delaying event. The courthouses and the Secretary of State’s office can close their doors to the public, as long as they still allow citizens to request records and submit legal documents by other means. Our schools can close their doors and send kids home, as long as they still offer free, fair, and universal learning opportunities to kids by mail and e-mail and other available channels.
Yet as coronavirus and efforts to check its spread make traditional petitioning irresponsible if not impossible, our state has not provided any alternative to the paper petitions that we cannot practically or safely circulate. While not outright banning the circulation of petitions, the State of South Dakota is requiring citizens who want to place laws and candidates on the ballot to use a single, antiquated paperwork process that places themselves and their neighbors at an increased and unreasonable risk of sickness and death.
Therefore, to preserve the constitutional (U.S. Constitution, First Amendment; South Dakota Constitution, Article 3 Section 1) rights of its citizens, the State of South Dakota has an obligation to immediately implement an alternative method of circulating and submitting petitions for access to the 2020 ballot. The state should immediately deploy an electronic petitioning system that allows citizens to sign petitions remotely, without in-person contact with circulators or notaries. Such systems exist and work. Arizona allows candidates to use an online signature-collection system called E-Qual, and Arizona ballot question sponsors are suing for equal access to that online petitioning system:
“We don’t stop caring about our children or give up our Constitutional rights because a global crisis hits our state,” said Raquel Mamani, chair of Save Our Schools Arizona, which is backing an initiative to put new limits the state’s school voucher program.
“And we shouldn’t be forced to do so, especially since there are options like E-Qual already in place that voters could easily use under these extraordinary circumstances” [Andrew Oxford, “Backers of Proposed AZ Ballot Measures Ask High Court to Let Them Collect Signatures Online,” Arizona Republic, 2020.04.02].
Given that such a system, with necessary security protocols to protect each voter’s rights and identity, will likely take weeks to acquire and deploy, the state must also delay three key petition deadlines: the April 28 deadline for independent candidates to submit nominating petitions, the June 29 deadline for sponsors to submit referendum petitions, and the July 1 deadline for the formation of new political parties. Governor Kristi Noem’s projection that coronavirus will peak in South Dakota in July or August means we cannot safely conduct traditional face-to-face petitioning through all three of those petition periods, meaning coronavirus would effectively disenfranchise every South Dakotan wishing to vote for independent candidates or new alternative-party candidates or vote on certain laws enacted by the 2020 Legislature.
Staying away from each other right now is necessary to protect public health. But the state still must secure our basic constitutional rights. With coronavirus making traditional petition activities irresponsible and impractical, South Dakota has a constitutional obligation to offer citizens a safe alternative means of making their voices heard by petition.