A year ago, when the anti-democracy schemes in our Legislature passed 2020 Senate Bill 180 to get out of trouble with the courts, I said they were still imposing unconstitutional restrictions on circulators of ballot question petitions and would likely end up in court.
The state actually wanted to have it out in court over SB 180 last year, claiming that SB 180 was substantively the same bill as 2019 House Bill 1094, the circulator badging and registry requirement whose defeat in court prompted the passage of SB 180. Before the Eighth Circuit Court of Appeals in December, the state argued that SB 180 narrowed, revised, and clarified HB 1094 but still applied the same restrictions on petition circulators as its predecessor bill. That’s nonsense: 2019 HB 1094 and 2020 SB 180 are different laws with different requirements and different definitions affecting different people. HB 1094 required anyone who circulated a ballot question petition to register with the state and wear a state-issued identification badge, putting circulators at risk of harassment and severely chilling free speech. HB 1094 also defined “circulator” as anyone who encouraged anyone else to sign a petition, thus ensnaring any public advocates in the registration and badging requirements, even if they had no petitions in their hands and no connection with the petition drive. SB 180 limits the registration and badging requirements to paid circulators. SB 180 removes the ID number from circulator badges, requiring that the badge only read “paid petition circulator”. SB 180 also redefines “circulator” to mean individuals carrying petitions or working in conjunction with such carriers.
The Eighth Circuit agreed, rejecting the state’s false equivalency and saying that the state couldn’t use arguments that apply solely to SB 180 to salvage the unconstitutional HB 1094. But now that Eighth Circuit have formally established that obvious distinction, interested parties can use the arguments that defeated HB 1094 as a basis for a constitutional challenge against SB 180.
Enter Dakotans for Health, the ballot question committee currently circulating a petition for an initiated constitutional amendment to expand Medicaid in South Dakota. On Tuesday last week, Dakotans for Health filed a complaint in the Southern Division of the U.S. District Court of South Dakota claiming 2020 Senate Bill 180—now dispersed among the provisions of SDCL Chapter 2.1—violates the constitutional rights of the committee and its paid circulators.
Representing Dakotans for Health is Rapid City lawyer Jim Leach, who composed the arguments that defeated HB 1094 in court. In this complaint, Leach invokes both HB 1094 and the preceding Initiated Measure 24 as examples of the pattern of behavior of Republican legislators working to dismantle South Dakotans’ right to initiate and refer laws. Leach says SB 180 continues that pattern. The complaint contends that the requirement that paid circulators register personal information in a public registry before circulating exceeds the limits set by Buckley v. American Constitutional Law Foundation, the Colorado case that was central to Leach’s successful argument against HB 1094.
A state’s attempt to impose more onerous disclosure requirements on paid circulators than on volunteer circulators is unconstitutional: “Listing paid circulators and their income from circulation’forces paid circulators to surrender the anonymity enjoyed by their volunteer counterparts,’ [American Constitutional Law Found. v. Meyer, 120 F.3d at 1105 (10th Cir. 1997)]; no more than tenuously related to the substantial interests disclosure serves, Colorado’s reporting requirements, to the extent that they target paid circulators, ‘fail exacting scrutiny,’ ibid.” Buckley v. Am. Constitutional Law Found., supra, 525 U.S. at 204 [Dakotans James Leach, representing Dakotans for Health, complaint, Dakotans for Health v. Noem, Ravsnborg, and Barnett, 2021.03.30, pp. 12–13 ].
The complaint notes that SB 180 targets only ballot question campaigns, not candidates, PACs, or parties, indicating that the law commits viewpoint discrimination against supporters of direct democracy. The complaint further contends that the state can’t justify this onerous burden on core political speech because it already had sufficient safeguards of the integrity of the petition process in place prior to SB 180.
And finally, like Leach’s successful arguments against IM 24, this complaint makes the odious but keenly relevant argument that, thanks to Citizens United, money is speech, and the state cannot discriminate against speakers who happen to be paid for their speech. The complaint says the only reason the state can impose extra restrictions on moneyed speech is to prevent quid pro quo corruption, but unlike corruptible political candidates, whom SB 180 completely ignores, ballot questions cannot be bought off to provide political favors. The state thus has no grounds for saying that paid circulators somehow pose a threat of corruption that justifies the state’s infringement of First Amendment rights. (I think I made this same offer during the litigation on IM 24: all the state has to do to get me to flip sides and argue for the defense is to base their strategy on overturning Citizens United.)
Judge Lawrence L. Piersol oversees the Southern Division; he’ll be reading the complaint. You should read it, too:
It’s hard to say when Judge Piersol will schedule a hearing on this challenge to SB 180. However, since petitioning is underway and petitions are due by November 8, SB 180 is harming Dakotans for Health right now. Thus, expect Dakotans for Health to press the court for as swift a response as possible.