While everybody had their eye on Kristi Noem’s unconstitutional effort in the South Dakota Supreme Court to take away our constitutional right to write our Constitution, our anti-democratic governor and Legislature suffered another loss on petition law in federal court.
This spring, Dakotans for Health sued Governor Noem, killer Attorney General Jason Ravnsborg, and Secretary of State Steve Barnett to block the enforcement of 2020 Senate Bill 180, the state’s requirement that paid circulators of initiative and referendum petitions register with the state, put their personal information in a public database, and obtain a badge from the Secretary of State before collecting any signatures on ballot question petitions. Dakotans for Health, a South Dakota ballot question committee promoting an initiated amendment to expand Medicaid, argues that SB 180 unfairly burdens First Amendment activity by subjecting paid circulators to harassment from ballot-question opponents who will use the registry to stalk them.
Dakotans for Health, represented by Rapid City attorney and experienced defender of democracy Jim Leach, brought that argument to Judge Lawrence Piersol’s federal courtroom in Sioux Falls Wednesday morning. Underscoring the universal recognition that Attorney Colonel Ravnsborg only kills on the highway and not in the courtroom, Governor Noem engaged more high-priced private attorneys, James E. Moore and Jacquelyn A. Bouwman of Sioux Falls megafirm Woods Fuller Schultz and Smith, to do the state’s work.
But even those private lawyers couldn’t put enough lipstick on the state’s pigheaded suppression of petition rights to pass muster with Judge Piersol. Right after the lunch recess, Judge Piersol returned to the courtroom and issued a temporary restraining order prohibiting the Secretary of State from releasing any information from the circulator database. Speaking from the bench, Judge Piersol affirmed several of the plaintiffs’ arguments and said they stand a good chance of winning the case on the merits of at least some—”I said ‘some,’ maybe not all”— of the issues.
First, Judge Piersol said SB 180 poses a threat of “irreparable harm” to Dakotans for Health, not to mention any other ballot question committee seeking to pay people for the trouble of gathering at least 33,921 voter signatures by November 8. In the process, Judge Piersol rejected the flimsy argument from the Governor’s expensive lawyers that Dakotans for Health could have avoided that trouble by proposing a simple initiated law instead of daring to amend the Constitution:
There’s been a showing of irreparable harm to the plaintiffs. To the extent it was shown, it’s not been countered, really by the defense. There’s a—there’s a high hurdle that that the plaintiffs have to meet in terms of numbers, since this is a proposed constitutional amendment. And it was argued that, well, it’s an emergency of their own making since they could, with about half the number, have an initiated law. Plaintiff counters that under the current political structure where the Democrats are a complete non-entity in the Legislature, that that would be a fool’s errand to go ahead and have an initiated law that the Legislature then could handily override at the next session. And that opinion put forth in affidavit by the plaintiff is not without some foundation, and that means that they do have a high hurdle. The hurdle is even higher with the pandemic that’s we’re currently undergoing. So there is a showing of irreparable harm to the plaintiffs by not being able to—they claim—recruit paid petition circulators other than, at least, Ms. Cole [Judge Lawrence Piersol, United States District Court of South Dakota, Southern Division, court transcript, Dakotans for Health v. Noem, Ravnsborg, and Barnett, 4:21-cv-04045-LLP, 2021.04.28].
Judge Piersol said putting the brakes on the publication of the SB 180 circulator registry would not hurt the state and suggested SB 180 was entirely unnecessary because, on the rare occasion of demonstrated naughty behavior by paid circulators, the state needed no such registry or badging requirements to protect the integrity of the initiative process. The state already gets the names and addresses of every circulator, paid and volunteer on the circulator oaths at the bottom of every petition sheet:
Well, there’s really no showing of any injury at this time to the State because the State will—by the time the petitions are presented, the State will have information with which it can see whether or not there’s been compliance with state law. And in that regard, you know, the one instance where it was shown that there were problems with petition circulators that were paid, that was handled under the current set of statutes, not  House Bill  or Senate Bill 180. Rather, it was handled, ultimately, through the courts, fairly expeditiously it looked like. So there is some showing of irreparable harm by the plaintiffs, and there’s really no showing of injury to the interests of the State on the granting of a temporary restraining order or an injunction, to the extent that one is going to be granted [Piersol, 2021.04.28].
Judge Piersol also invoked the public interest in favor of the plaintiffs, saying that South Dakota voters deserve more opportunity to sign petitions and vote on important policy issues. He suggested SB 180 is an “overreaction” that undermines the public’s interest in participatory democracy:
Well, the public interest favors the public being able to bring forth important public issues that then, in turn, can be presented to the public for the public to vote on them directly. And the current system allows that. There are some restraints that are in place on Senate Bill 180 without really a showing of ills to be addressed by 180, other than what it does address in maybe some overreaction. But by having a limited temporary restraining order, the Court is not going to, in any way, harm the State’s interest in being able to enforce the law to see that improper things aren’t done in the solicitation of signatures on ballots; and at the same time, the public is going to get an opportunity to sign a petition if they choose and, if enough signatures are gathered, then to vote on that proposition. So the public interest is served by having what I consider to be a limited TRO in effect so that the plaintiffs can move ahead in their efforts, anyway, to gather the large number of signatures they have to get by November 1st of this year [Piersol, 2021.04.28].
Now South Dakotans interested in working as paid circulators might look at Judge Piersol’s temporary restraining order and say, “Wait a minute: temporary?” Judge Piersol said his TRO stand for 14 days, and he plans to extend it for another 14 days beyond that, “because these are complicated constitutional issues that are entitled [to] and require considerable analysis by the Court.” He could complete his considerable analysis and decide, “Oops! I changed my mind. SB 180 poses no threat; Secretary Barnett, go ahead and publish that registry.” The temporary restraining order cold lure circulators eager for paying work into surrendering their information to the Secretary, thinking they’d be protected from harassment, only to have the the court pull that rug out from under them.
But if Judge Piersol recognizes the harm a public circulator database can do to circulators, he likely recognizes the danger of luring them in with a promise of protecting their data only to reverse course and subject them to that harm. I thus speculate that Judge Piersol is pretty darn sure SB 180 will not survive his deeper constitutional scrutiny. The danger to circulators of harassment due to the public registry is clearest and most present, and the absence of any countervailing state interest in imposing such a hazard is obvious and unsupported by anything the Governor’s lawyers could cook up, so the judge is willing to immediately suspend that odious burden and protect active circulators while he combs through the more complicated issues of the case to see how much else of SB 180 violates the Constitution.
Piersol did grant the state one line of hope, stating in court Wednesday (and issuing a written ruling Thursday) that Senate Bill 180 is severable, meaning he may strike down the public registry for circulators but let stand other elements of the registration and badging requirements. But in granting this immediate restraining order against the publication of circulator information, Judge Piersol recognizes the harm the Governor and the Legislature sought to do to the petitioners who dare challenge the powers that be with initiatives and referenda. The judge’s words from the bench also strongly suggest that, once again, Governor Noem’s efforts to quash First Amendment rights can’t stand up in court, no matter how much she pays her Sioux Falls lawyers.