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Court Kills SB 180: Even Paid Petition Circulators Have First Amendment Rights

A year and a half ago, when Republican legislators scrambled to come up with a replacement for their petition circulator registry scheme that I destroyed in court, I warned them that, despite the help I offered, they were putting up another initiative-suppressing measure that would not withstand judicial scrutiny.

Republican legislators didn’t listen, and now the U.S. District Court has proven me right—again. Ballot question committee Dakotans for Health took 2020 Senate Bill 180 to court this spring, and yesterday, Judge Lawrence Piersol ruled that SB 180 violates the First Amendment.

At the end of April, Judge Piersol issued a temporary restraining order against publication of the paid circulator database created by SB 180, suspending that portion of the law so it would not cause “irreparable harm” to Dakotans for Health and its effort to circulate petitions to place Medicaid expansion on the 2022 ballot while he considered the arguments for and against SB 180 in full.

Judge Piersol has now fully considered SB 180 with its registry and badging requirements for paid circulators, and His Honor finds SB 180 fully bad:

The court did not go easy on Dakotans for Health. The court says Dakotans for Health did not provide evidence that requiring paid circulators to register and wear badges had yet prevented them from hiring any circulators or that promoting Medicaid reform would draw “threats, harassment, or reprisals against petition circulators.”

But when we’re talking core political speech, the burden falls on the state to prove that it has a compelling interest in imposing restrictions. The court held that the state’s disclosure requirements on paid circulators are even worse than the disclosure requirements overturned in Colorado in the Buckley case, which figured centrally in the judicial reasoning that killed SB 180’s predecessor in court, 2019 House Bill 1094:

In this case, SB 180 requires disclosure of even more information than in the monthly reports in Buckley. In addition to name and address, paid circulators in South Dakota must disclose phone numbers, email addresses, state of issuance for driver license or other i.d., state of voter registration, and whether the paid circulator is a registered sex offender. Buckley made clear that disclosure of paid circulator information is just as problematic when they are made before the petitions are circulated as when they are made (by name badges) to the signer at the exact time that the petition is circulated. The circulator’s interest in anonymity is also great before the petition is circulated. SB 180 requires release of all of the personal information regarding paid circulators to anyone who requests it from the Secretary of State. If someone decided to harass a petition circulator, it would be easy to find their personal information, and the harassment could take place at any time and even via email or phone, or at the circulator’s home. In other words, intimidation of paid circulators could occur even when the circulator is not working at obtaining signatures. The Supreme Court in Buckley upheld the affidavit requirements that disclosed circulators’ names and addresses specifically because it “must be met only after circulators have completed their conversations with electors.” 525 U.S. at 200. It struck down the requirement that the paid circulators’ information be released before the petitions were circulated.

The same reasoning applies to SB 180’s requirement making the personal information of paid circulators available to anyone who requests it from the Secretary of State, and that requirement must be struck down as unconstitutional because the State’s evidence is not enough to demonstrate a substantial need to disclose personal information of paid circulators, which burdens core political speech [Judge Lawrence Piersol, ruling, Dakotans for Health v. Noem, 2021.06.14, p. 18].

Judge Piersol rejected the State’s argument that petition circulators act as legislators: circulators don’t make laws; they just get signatures to give the people the chance to make laws. Judge Piersol said the public has a clear interest in knowing who is sponsoring and funding a ballot question petition drive (and we have all sorts of other disclosure laws for that) and even in seeing the names of petition signers but not in knowing the private information of petition circulators.

“Less intrusive alternatives are available to further the State’s interests in preventing corruption and protecting the integrity of the ballot initiative process,” writes Judge Piersol, “and public disclosure of petition circulators’ private information cannot survive exacting scrutiny.” Judge Piersol says the state can and does require all the information it needs to track down circulators after they have collected signatures, when there’s an actual signed petition to make their work worth investigating.

Judge Piersol also finds that SB 180 discriminates against paid circulators. The court finds that the state offered no evidence that paid circulators are more likely to commit petition fraud than volunteers. “If the State’s interest is, as it says, to ferret out invalid signatures, it makes no sense to limit its regulations to paid circulators and not apply them as well to unpaid circulators.” Judge Piersol appears to smell the real intent of Republican restrictions on initiative and referendum: not to protect the process but to encumber it with so much paperwork and so many practical hurdles that citizens can’t afford petition drives to place measures on the ballot.

Judge Piersol thus enjoins the Secretary of State from enforcing the requirements of SB 180. As I’ve argued from the beginning, no circulator, paid or volunteer, should have to seek the Secretary of State’s permission or wear the Secretary of State’s badge to collect signatures for ballot question petitions and do the good work of democracy. Hooray!

Updated 17:57 with link and embedded copy of Judge Piersol’s June 14 Memorandum Opinion and Order in Dakotans for Health v. Noem, Ravnsborg, and Barnett.

19 Comments

  1. Porter Lansing 2021-06-15

    The registration requirement in Buckley operated much like Colorado’s ban on paid circulators — which the Court had struck down in Meyer v. Grant (1988), ten years before.

    ~ Viva Paid Petition Gatherers Without Borders And Residency Requirements ~

  2. Donald Pay 2021-06-15

    I don’t like paid circulators, but the conservative and corporate-lackey US Supreme Court has decided over the course of decades in worse and worse fashion that money is speech. It would be nice if the South Dakota Legislature would craft a reasonable and legal approach to this matter, or encourage the US Supreme Court to overturn it’s belief that “money talks.”

    There can be a streamlined process for grassroots-based all-volunteer ballot-measure efforts. Cut the up-front bureaucratic crap for South Dakota grassroots volunteer ballot measures. Second, establish a citizen-friendly badge system that allows voluntary badging for non-paid circulators only. People will then be able to distinguish who is a voluntary circulator. Pass a law preventing threatening or harassing petition circulators.

  3. John Dale 2021-06-15

    We don’t agree on everything (I know, cliche’), but when we do agree on something, it is smart to work together.

    That said, I probably wouldn’t go as far in the pursuit of pure democracy as you would, Cory. That said, I can hold two ideas in conflict in my head at the same time for analysis, and I’m always interested in hearing the merits of new ideas.

    Legislation crafted as a knee jerk to stymie something particular as opposed to crafting a more broad interpretive framework doesn’t really appeal to me.

    So there. I don’t agree with everything our Republican leadership does.

  4. mike from iowa 2021-06-15

    I’ll agree you’re a nut.That makes it unanimous.

  5. grudznick 2021-06-15

    Boo! and Hiss! on door-to-door salespeople. Geet off my yard, I say!

  6. leslie 2021-06-15

    Cory, my deep respect! Not yet reviewing the text above, there are sinister forces arrayed against us to exhaust and deplete meager democratic resources with frivolous litigation.

    It will never end until SCOTUS has some parity, Thune and his dark forces are eliminated, and some political sense and sanity is restored to the 1%, to tax Koch’s and the other free-loader billionaires who don’t wanna see homeless people sleep unless their tent cities are only along polluted intestate highways, bible photo-ops over broken bodies of protesters are stopped, and truth in all matters is restored.

    Dale, get a real life!:)

  7. grudznick 2021-06-15

    grudznick agrees to some extent with Ms. leslie. There are sinister forces arrayed, in sort of a pincer move, against the libbies in South Dakota. Heinous they are, and I know this as I know some of them personally.

    However, Mr. Thune is not part of any dark forces. That just seems like tinfoil hatterism.

  8. Cory Allen Heidelberger Post author | 2021-06-15

    Donald, when Attorney General Marty Jackley files suit to overturn Citizens United (and we know it won’t be the current AG, because he’s just phoning everything in until 2023, probably from behind the wheel), I will happily file an amicus brief for the state and send Marty cookies. Until then, I will revel in beating Republicans over the head with that odious but governing law of the land.

  9. Porter Lansing 2021-06-15

    … said the flathead connie

  10. Cory Allen Heidelberger Post author | 2021-06-15

    John, I think we agree. Let’s remember that the only framework Rep. Hansen, Senator Stalzer, and the GOP are applying to their legislation on initiative and referendum is how to crush the process and stifle our voices. Even their occasional invocations of “Republic Not A Democracy™” are not invitations to the debate of principles you might enjoy about the arguably sensible limits of direct and universal participatory government but specious cloakings of their pure power grab and effort to box out any competing voices.

  11. Cory Allen Heidelberger Post author | 2021-06-15

    Grudz, I agree: I don’t like salespeople trespassing on my turf, either. But I don’t need them to pre-register with the state or wear badges to allow me to put up my sign or shout out my dining window for them to beat it. Hooray for Judge Piersol’s reminder that big government infringing on free speech is bad, very bad!

  12. Cory Allen Heidelberger Post author | 2021-06-15

    Leslie, do send your respects to attorney Jim Leach and plantiffs Dakotans for Health. The two laws I challenged with Leach lawyering for me, IM 24 and 2019 HB 1094, more blatantly and broadly infringed on First Amendment rights. 2020 SB 180 was a harder bill to argue, but Dakotans for Health was willing to take on that challenge, and Jim Leach was able to lay out the arguments clearly enough to win this harder case.

    Adding to the degree of difficulty was the fact that Leach had to argue against real attorneys, the private Sioux Falls attorneys Governor Noem hired on our dime to defend SB 180 and keep Ravnsborg’s team of bumblers from fumbling another case. But even those pros couldn’t beat Leach and defend the state’s continued war against initiative and referendum.

    South Dakota’s federal courts have now produced three powerful decisions overturning anti-democratic laws and defending the people’s right to govern themselves against the brutal onslaught of Republicans bent on autocracy. South Dakota might save this nation yet.

  13. leslie 2021-06-15

    Jim is one in a million. They know that. That’s why RAGA exists.

  14. grudznick 2021-06-15

    Mr. H, I have heard the next idea is QR code tattoos for circulators you can scan with your phone to find out all about them.

  15. leslie 2021-06-15

    Thune does precisely what he is told at all times by Darth Carapace out-of-stater McConnell. Bahahaha (bawl of lecherous ruminant)

  16. Arlo Blundt 2021-06-15

    Well…hats off to Judge Piersoll…both Judge Piersoll and Judge Kornman have been on the bench for many years (over 30??) and have always been highly respected jurists. I believe Kornman was appointed by a Republican governor and Piersoll by a Democratic President. Politics don’t matter in these two cases. In both, the courts are standing up for the integrity of the court and the legal tradition of our state and country. As a traditionalist, I applaud their fearless action. Take a hike Grudz.

  17. Arlo Blundt 2021-06-15

    Pardon me, I should have said Kornman appointed by a Republican President…my goof, though I know Kornman was a very respected Jurist by people of both parties.

  18. drey samuelson 2021-06-18

    Congrats to Cory, Jim Leach, and Dakotans for Health (and thanks to Judge Piersol, as well!). This is a huge win for democracy, and a huge defeat for nakedly partisan autocracy!

Comments are closed.