The state hasn’t given up the fight to suppress voter rights by suppressing the circulation of ballot question petitions. Ten days after Judge Lawrence Piersol declared the SDGOP’s public registry and badging requirements for paid petition circulators unconstitutional and enjoined the Secretary of State from enforcing the provisions of 2020 Senate Bill 180, the lawyers from Woods Fuller that the state hired to press its case in the absence of any competence in the Attorney General’s office filed notice that they will collect more fat checks from us taxpayers as they appeal the case to the U.S. Eighth Circuit Court of Appeals.
Remember, the Eighth Circuit is the same appeals court that rejected the state’s appeal of its last initiative-suppression scheme, 2019 House Bill 1094. In killing SB 180, Judge Piersol cited the same core precedential case, Buckley v. ACLF (1999), that sank HB 1094. If Woods Fuller is going to save SB 180, it’s going to pull new rabbits out of its silk-lined hat.
This appeal will take months. On Tuesday, the Eighth Circuit issued a briefing schedule that calls for the state to file its brief by August 18, appellee ballot question committee Dakotans for Health to file its response 30 days after that, and the appellants to file their response another 21 days later. That filing schedule alone would get us to October 9. Even if the Eighth Circuit hears arguments shortly after that, they took two months after hearing to rule on the appeal on HB 1094, so the state will not get a ruling on its appeal until after the November 8 deadline for submitting initiative petitions. Judge Piersol’s injunction against SB 180 remains in place, so even if successful, the state would not get to force paid circulators for Dakotans for Health or any other active ballot question committee to pre-register and wear badges to exercise their First Amendment rights this year; such oppression would have to wait until the next ballot question cycle in 2023.
That’s why that state has also filed a motion asking Judge Piersol to stay his injunction, claiming that the state will be irreparably harmed if it cannot force circulators to surrender their contact information to a public registry prior to circulating petitions… even though Judge Piersol has made pretty clear that the state’s interests in collecting circulator information are fully met by the circulator oaths and contact information provided after they circulate, when they submit their petitions. Absent a stay, without SB 180 in force, the state claims that “All ballot initiatives seeking inclusion on the 2022 general election ballot could be compromised without any recourse on behalf of the voters of South Dakota.” That, of course, is false: voters concerned about the integrity of ballot measures could (a) challenge any suspect petitions in court and (b) vote any suspect initiatives down in 2022.
Jim Leach, attorney for Dakotans for Health, wrote to Judge Piersol yesterday that Dakotans for Health will resist the motion for a stay and that he will file his brief by tomorrow, July 2.