The Eighth Circuit Court of Appeals heard SD Voice and Cory Heidelberger v. Governor Kristi Noem, Attorney General Jason Ravnsborg, and Secretary of State Steve Barnett II last week Wednesday. (I add the “II”, since this is the second federal case involving these litigants, though only the first to go to appeal.) Judges Raymond Gruender, Ralph Erickson, and Jonathan Kobes heard 30 minutes of argument from Deputy Attorney General Jeffery Tronvold for the state and Rapid City attorney James Leach for the plaintiffs.
This appeal is curious and complicated. SD Voice is my ballot question committee. Last January, for the second time, SD Voice won a challenge to a South Dakota law that infringes on our right to circulate petitions and put laws to a vote via the initiative and referendum process. Specifically, I challenged 2019 House Bill 1094, which would have required ballot question petition circulators and advocates to register with the state before participating in a petition drive, submit personally identifying information to a public database, and wear an ID badge while soliciting signatures. U.S. District Judge Charles Kornmann found that all of those requirements violate the First Amendment by suppressing core political speech. The Legislature seemed to agree, working up a new law, 2020 Senate Bill 180, to repeal 2019 HB 1094 and replace it with much narrower (though still Constitutionally problematic) circulator restrictions applied only to paid circulators, not volunteers. Yet at the same time, the state appealed Judge Kornmann’s ruling, fighting to reverse a ruling on a law that no longer exists.
SD Voice v. Noem II also challenged South Dakota’s 12-month deadline for submitting initiative petitions. Citizens who want to change South Dakota law by popular vote must collect tens of thousands of signatures and submit their petitions a full year before the election. I contend that early deadline restricts our ability to check the Legislature without satisfying any compelling state interest. Yet strangely, while both sides argued the point vigorously at trial, Judge Kornmann said nothing about the twelve-month deadline in his January 2020 ruling and tersely declined my follow-up request for a ruling on our fifth cause of action. SD Voice thus cross-appealed, asking the higher court to send the the deadline portion of the case back to Judge Kornmann for a ruling on the merits.
Audio of the teleconferenced hearing is available online via the Eighth Circuit. Deputy A.G. Tronvold opened with by saying Judge Kornmann misinterpreted HB 1094’s definition of “solicits petition signatures,” applying the term too broadly to anyone who spoke in favor of signing an initiative petition. (Judge Kornmann did indeed interpret the definition that broadly, but he was reading the definition exactly as the Legislature wrote it, not adopting the crazy post facto wishful thinking on stilts the state offered in its briefs to say the law didn’t mean what it plainly said.) That misinterpretation led Judge Kornmann to apply strict scrutiny rather than exacting scrutiny (meaning he held HB 1094 to too hard a standard).
Tronvold started to argue that Judge Kornmann also ignored evidence of abuse of the initiative process, but one of the judges [I apologize here: the audio does not indicate which judge spoke when] interrupted and asked Tronvold to explain why the repeal of HB 1094 and the enactment of SB 180 don’t moot the state’s appeal. Tronvold responded that SB 180 narrows, revises, and clarifies HB 1094 but still applies HB 1094’s restrictions on ballot question petition circulators.
Thus began a dialogue in which the court burned up six minutes of Tronvold’s allotted ten on this question of mootness. The court suggested that the state’s “substantial modification of statute” would require the court to speculate on what Judge Kornmann would have said about Senate Bill 180. The court asked, if it finds this appeal moot, what the state would want the court to do with Judge Kornmann’s ruling. Tronvold replied that the state would want the court to vacate that ruling, because otherwise the precedent set by SD Voice v. Noem II would be left in place.
I must digress, because that’s an important point, perhaps the crucial point of the state’s appeal. The state would seem to have no reason to appeal a law that the state itself repealed. A successful appeal would not restore HB 1094. But the state is no longer worried about HB 1094 specifically; it is worried that SD Voice v. Noem II gives other courts a precedent for throwing out other onerous burdens that South Dakota and other states may try using to stifle the voice we the people express through initiative and referendum.
This logic is expressed in a friend-of-the-court brief filed by the South Dakota Biotech Association, the big-money outfit that spent $4.2 million in Big Pharma money to kill in court the 2017 initiative petition for the stymied prescription drug price cap. SD Biotech, represented by Kristi Noem’s favorite lawyer and initiative killer Matthew McCaulley, claims in its May amicus curiae brief that restrictions on direct democracy represent “the emerging consensus in other states that additional transparency and accountability are necessary to protect statewide initiatives and referenda.” (Transparency—yes, this McCaulleyan Newspeak should sound familiar.) SD Biotech claims that Judge Kornmann’s ruling “if left to stand, would significantly erode the procedural safeguards that numerous other states have recognized are necessary to protect the initiative and referenda process.”
That alleged “consensus” about the need for “procedural safeguards” is cover for the ALEC-backed nationwide Republican campaign to hamstring initiative and referendum and stop the voters from using the ballot box to counter the Party’s agenda with what the people really want. (Reject the will of the voters—yes, that should sound familiar, too.) Corporate Big Pharma’s closing contention makes clear that the state’s appeal is no longer just about a squabble in South Dakota. We really are fighting for the soul of the nation, for the ability of residents of several states to circulate petitions and turn their voices into law.
The judge persisted in asking about mootness, saying the state’s modification of the law would make the state responsible for mooting the appeal. Tronvold persisted in claiming that the “vast majority” of HB 1094 is still consistent with SB 180. The judge asked if SB 180 was passed in response to the court’s rejection of HB 1094; Tronvold meekly said it could have been. (Check the record; SB 180’s sponsor said explicitly that it was.)
The judge asked Tronvold if the plaintiffs’ briefs indicate we do not feel disadvantaged under SB 180 the way we did under HB 1094. Tronvold said he’d have to go back and read the brief but said we seem to agree that SB 180 is not unconstitutional. (We actually make no claim at all about the merits of SB 180, because we’re in court to argue HB 1094.)
Finally allowed off the hook by the panel, Tronvold returned to his prepared argument. In his remaining time, he argued that Judge Kornmann incorrectly stated that the state presented no evidence of the state’s interest in restricting petition circulation. Tronvold noted that HB 1094 sponsor Representative Jon Hansen (R-25/Dell Rapids) testified extensively to the fraud and abuse that took place in connection with the circulation of the 2017 prescription drug price cap initiative petition. Tronvold complained that Judge Kornmann ignored Hansen’s testimony and the evidence of circulators’ wrongdoing. He complained that the violations committed in that petition drive came to light only because private parties paid attorneys and investigators to jump through numerous hoops. He contended that HB 1094 would have allowed concerned parties to uncover the violations committed by petition circulators earlier, before the petition submission deadline, and thus would have allowed the petitioners to remedy those violations and collect additional legal signatures to keep their measure on the ballot.
Jim Leach then rose to set the record straight. Leach said the appeal revolves around three issues: jurisdiction, mootness, and merits.
Leach opened by contending that the Eighth Circuit should remand the case to Judge Kornmann to get a final judgment on the petition-deadline question so that we can bring the case back for a full appeal if necessary. One of the judges asked if the Court of Appeals already has jurisdiction to rule under another rule. Leach said we’d be perfectly happy if the court finds it already has jurisdiction.
On mootness, Leach said the court is exactly correct. The state concedes that the Legislature replaced HB 1094 with SB 180 in response to Judge Kornmann’s ruling. HB 1094 is history, so nothing about it is properly before this court.
The judge asked if the proper response is to vacate Judge Kornmann’s ruling. Leach said no, the precedent should be left standing. Leach cited the Eighth Circuit’s own 2019 opinion in Moore v. Thurston, an Arkansas case about candidate petition deadlines. A citizen challenged a burdensome statute, the district court ruled the law burdensome, and the Arkansas Legislature changed the law to fit the ruling. The state appealed and asked the court to vacate the ruling. The Eighth Circuit said the appeal was moot but the ruling should stand, for the minor reason that the state doesn’t get to secure vacatur by causing mootness, but for the major reason that this precedent serves the public interest:
But even if the Secretary is not at fault for the mootness here, the public interest weighs in favor of allowing the district court’s judgment to stand. As we previously noted in Moore, 854 F.3d at 1026, independent candidates and voters have repeatedly—and successfully—challenged Arkansas’s ballot-access requirements. We thus conclude that the publci interest is best served by a substantial body of judicial precedents limiting the burden that those requirements may place on candidates’ and voters’ First and Fourteenth Amendment rights [Judge Roger Wollman, Moore v. Thurston, Eighth Circuit Court of Appeals, 2019.07.01].
Leach said Judge Kornmann’s ruling serves the public interest because citizens of all political persuasions around the country are bringing ballot questions to reclaim their power and legislatures are resisting by limiting the right of initiative (and yes, Leach cited exactly this New York Times article addressing anti-initiative legislation in South Dakota and elsewhere). A judge interposed that circuit court decisions aren’t binding on anybody; Leach replied that courts often give deference to what other courts have found. Leach said Kornmann’s decision is well-written and persuasive enough that other courts would likely refer to it in similar cases.
The judge asked Leach about just how substantively different SB 180 is from the HB 1094 that it replaced. Leach said some elements of HB 1094 remain, like the public database of circulators, although it is now drastically limited to only paid circulators. The judge asked if the plaintiffs feel disadvantaged by SB 180 as we did by HB 1094. Leach said yes, we’ve never said we are happy with SB 180. We’re happy the state got rid of the blatantly unconstitutional provisions of HB 1094, but we can’t resolve the details of SB 180 in the Court of Appeals right now because no challenge to SB 180 has been tried or decided. Leach echoed the court’s question to Tronvold about speculation, saying the state is asking the Appeals court to speculate on arguments that could be made for or against SB 180 and then resolve those arguments as a “court of first impression, which I suspect this court is reluctant to do.” (That’s one of the smartest things I’ve heard Jim Leach say in court, and he says a lot of smart things.)
Leach turned then to the state’s argument about poor ignored Jon Hansen. Leach said the District Court is not obligated to accept any witness’s testimony. Leach contended Judge Kornmann had good reason not to accept Hansen’s testimony, as it smelled of a story concocted to make a nice impression about Hansen’s concern about fraud and abuse, in contradiction to Hansen’s public comments prior to trial about how he intended HB 1094 to keep out-of-state liberal ideas out of South Dakota.
On the merits of Hansen’s claims of circulator fraud, Leach noted again that in the sole instance of alleged trouble out of dozens of other honest petition drives, the status quo ante was more than adequate to deal with it without HB 1094.
The judge asked about out-of-state circulators violating petition law. Leach responded that HB 1094 did nothing to really check that problem while at the same time scooping all sorts of honest South Dakotans into the overbroad restrictions on advocacy for petitions.
The judge asked what should should happen to our deadline cross-appeal if the court finds jurisdiction and mootness. Leach said the court should remand the question to Judge Kornmann for a ruling on the merits.
Leach concluded his 15-minute argument by reminding the court that SB 180 is not the case before the court now. The state repealed HB 1094, so there is no case of controversy before the court for the state to appeal, but our cross-appeal merits a ruling from the District Court on the petition deadline.
In his five-minute rebuttal, Deputy A.G. Tronvold recapitulated his earlier arguments that SB 180 simplify clarified the HB 1094 definition of “solicits”and that Judge Kornmann erred in stating that the state presented no evidence to support its compelling interest in restricting petition circulation via HB 1094. Tronvold also asserted that HB 1094 sponsor Representative Hansen brought those restrictions to the Legislature in response to his own experience with the alleged abuses in the 2017 prescription drug price cap petition drive. He concluded by repeating that HB 1094 would have allowed petitioners to redress their wrongs and resubmit their petition before the 2018 ballot question deadline.
The judge interrupted Tronvold’s rebuttal to ask about the fifth cause of action, the petition deadline question. On what basis, the judge asked, did the District Court resolve that cause of action? The judge said he didn’t see any analysis or mention of that issue, only Judge Kornmann’s denial of the plaintiffs’ motion to reconsider. Tronvold said there was no such analysis, but that case law says that in the absence of such analysis, federal courts may assume that the state courts ruled on the merits. The judge replied that the case law cited by the state is a very different context and asked what the state would recommend if the court rules that the state’s appeal is moot and that the fifth cause, the deadline question, has not been satisfactorily decided. Tronvold said that, in that case, yes, the case should go back to Judge Kornmann for analysis and a final decision.
The Eighth Circuit gave no indication of when it may rule on SD Voice v. Noem II. As a party to this case, I won’t presume to distinguish my hopeful advocacy from any tea-leaf reading of the judges’ questions. But mootness is clearly on the judges’ minds, and Leach makes a strong case on the basis of Moore v. Thurston for sustaining this case’s valuable precedent beyond the state’s crafty mootation of HB 1094.
Thanks to you and Jim Leach for pursuing this. The effort by Republicans to violate the Constitution is reprehensible. I hope you can get a ruling on the deadline question. Deadlines in the late 80s-90s were most reasonable. Even those that worked in earlier years made sense. Current pre-petioning requirements are largely unnecessary, and the deadlines are set to violate the SD Constitution.
I’m really glad Jim Leach decided these ballot question cases were worth his time and considerable talent. He serves a lot of litigants in much greater personal distress than I. His sense of public service is hard at work in this case.
I would love to hear the Eighth Circuit come to the same conclusions as Judge Kornmann did on those onerous pre-circulation requirements and affirm our position on the punitively early deadlines. However, we don’t need the Eighth Circuit to come fully to any of those conclusions. We just need the Eighth Circuit to say that the state mooted its own appeal of the HB 1094 ruling when it repealed and replaced HB 1094 with SB 180. We need the Eighth Circuit to follow its own precedent in Moore v. Thurston 2019 and let Judge Kornmann’s ruling stand as useful precedent in the public interest. And we need the Eighth Circuit to direct Judge Kornmann to give that too-early deadline the attention it deserves… and hope that His Honor doesn’t take too much umbrage at our appealing his silence on that fifth cause of action.
Great job Cory. I had no idea. I read the entire article along with research and you are doing a wonderful job. The entire state should thank you.
Jim is a hero, no doubt about it.