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Another Win for Democracy: Judge Gives Citizens Six More Months to Circulate Petitions for Initiated Laws!

Guess who just beat Kristi Noem and Jason Ravnsborg in court again?

South Dakota required citizens to submit petitions for statewide initiated laws a full year before the general election… until this afternoon, when United States District Court Judge Charles Kornmann declared that deadline unconstitutionally restrictive on First Amendment rights. South Dakota law used to give sponsors until the first Tuesday in May to submit petitions for initiated laws, before the Legislature started taking that time away. Today’s ruling thus gives us back six months of legal petition time.

However, today’s beating was not total! Judge Kornmann applies his ruling strictly to initiated laws, not initiated constitutional amendments. Judge Kornmann says constitutional amendments warrant more scrutiny, and the one year petition deadline for initiated amendments is part of both statute and the constitution itself (Article 23, Section 1). So all you folks out there circulating petitions for constitutional amendments to expand Medicaid, establish independent redistricting, and run top-two primaries, well, I apologize—I couldn’t win you a later deadline. Your petitions are still due on November 8. 

But if any of you are thinking about putting an initiated law on the 2022 ballot, today’s ruling—if the state chooses not to appeal—opens the door for you to submit your papers to Pierre for review and circulate petitions through Thanksgiving, Christmas, and Easter and right on to May 3, 2022.

Here’s the judicial reasoning that opens that door to a more democratic springtime:

Returning to the U.S. Supreme Court’s bedrock 1999 Buckley ruling (which figured centrally in Judge Kornmann’s overturning of the circulator registry and badges in 2020), Judge Kornmann says this case requires balancing two competing interests: petition circulation, core political speech for which First Amendment protection is “at its zenith”; and fair and honest elections, requiring “substantial regulation… if some sort of order, rather than chaos, is to accompany the democratic processes” [Kornmann, quoting Buckley, p. 4]

Judge Kornmann warns his balancing of those interests does not depend on whether the circulation deadline makes it harder to change state law by initiative. The First Amendment does not guarantee a right to direct democracy. Judge Kornmann says he can only overturn the early petition deadlines if they restrict speech, if they “make it more challenging to circulate petitions and collect the required number of signatures, or chill voter speech by somehow making a voter reluctant to sign a petition they otherwise might” [p. 5].

Giving South Dakotans only one year to circulate initiative petitions and requiring their submission a full year before the general election does restrict speech:

The petition filing deadline and circulation period restrict speech by making it “less likely that [plaintiffs] will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion.” Meyer v. Grant, 486 U.S. 414, 423 (1988). A long filing deadline also restricts the amount of speech and discussion that will surround a proposed initiative because circulation activities will be far removed from the time of the election. The circulation period also restricts the sheer quantity of speech surrounding petition circulation because only a single year of circulation is allowed [link added; p. 5].

In 2020 the Eighth Circuit (of which South Dakota is part) upheld a lower court ruling overturning an Arkansas law requiring third-party candidates to submit their petitions 425 days before the general election. That ruling cited a 1983 U.S. Supreme Court ruling on the harmful effects of early filing deadlines for candidates, which Judge Kornmann invokes and applies to initiatives:

Those same concerns about early filing deadlines affecting minor party candidates apply to the sponsors of ballot initiatives. Issues do not remain static over time; rather they shift and change with elections and legislative cycles. An issue that is particularly topical might not be eligible for placement on the statewide election ballot until years later under SDCL 2-1-1. If a sponsor decides to put forth an initiative, say six months prior to an election, that sponsor would have to wait until an election two and a half years later to see the measure put to the vote….

…Volunteer circulators are more difficult to recruit and retain and financial contributions are more difficult to secure. Lastly, voters… are less interested and less politically engaged at times so far removed from the general election and may be less interested in hearing what petition circulators have to say about a given issue. These individual burdens combine to make it less likely that a given measure will garner enough support to be placed on the ballot and, consequently, less likely that the subject of said measure will become a statewide topic of political discourse [pp. 6–7].

These burdens on core political speech would pass constitutional muster of the state could demonstrate that these restrictions are necessary to conduct orderly elections. “[S]ome filing deadline is clearly necessary for the State to have time to complete its work surrounding ballot measures and the election itself” [p. 7]. But the state presented no evidence that the one-year deadline is necessary. Deputy Secretary of State Kea Warne testified that her office [Kornmann’s words, p. 9] “never had any trouble complying with any prior deadline,” which included, prior to 2006, the first Tuesday in May.

Judge Kornmann finds that the laws rolling that deadline back to seven and then twelve months “severely burdened” First Amendment rights without serving any compelling state interest. Judge Kornmann thus overturns those laws and resets SDCL 2-1-1.2 to its status prior to the 2006 change—i.e., “that the filing deadline for ballot measure initiatives under SDCL 2-1-1.2 is to be the first Tuesday in May during the year of the election. This was the law from 1989 to 2006 and served the voters and the State perfectly well” [p. 15].

But wait: SDCL 2-1-1.2 only addresses petitions for initiated laws. SDCL 2-1-1.1 still codifies the one-year deadline called for in Article 23 Section 1 for initiated constitutional amendments. Judge Kornmann leaves that longer deadline in place for initiated amendment petitions, because amendments are “altogether different” from laws. Voters themselves deemed that one-year deadline “eminently reasonable” when they ratified the constitutional overhaul of 1972. “[T]he stakes” in amending the constitution “are much higher” because “[o]nce passed, constitutional amendments cannot be undone, except by further constitutional amendments” [p. 10].

Judge Kornmann does not apply his concerns about allowing voters to strike while the iron is hot and discuss initiated laws via the petition process during the election year because “constitutional amendments are less likely to concern matters that are politically in vogue” [p. 10]. The state’s governing “cornerstone” should be amended not “on a political whim, but rather after careful consideration, more removed from political trend” [p. 10].

First Amendment protections are at their zenith for core political speech, but the state’s interest in “fair, legal, and well-run elections” reaches its “zenith when a constitutional amendment is at stake” [p. 11]. Thus, says Judge Kornmann, the state has a greater interest in regulating initiated amendments than initiated laws. The state may thus impose an earlier deadline on initiated amendment petitions than on initiated law petitions.

31 Comments

  1. grudznick 2021-08-30

    Boo! Boo! Hiss! Citizen initiated law bills are always poorly written and sloppily unconstitutional.
    Shame! Shame!

  2. Frank Kloucek 2021-08-30

    Congratulations Cory. You are truly a man of the people…………..

  3. Porter Lansing 2021-08-30

    Well done, Cory.

    Judge Kornmann leaves South Dakota for six months a year, for a reason besides weather.

    Reasonable people can only tolerate grudz, Noem, and the extremist legislature in small doses.

  4. Richard Schriever 2021-08-30

    Well grudz, it seems this ruling says that SD legislatively written laws are poorly written and sloppily unconstitutional. So, there you go.

  5. grudznick 2021-08-30

    It’s hogwash. That Judge Lange fellow has issued many opinions that are balderdash and slop.

  6. Bob Newland 2021-08-30

    Another defeat for the Taliban in SoDak.

  7. jerry 2021-08-30

    Most excellent Cory.

  8. Donald Pay 2021-08-30

    Kornmann’s decision is fair and reasonable. I’m not sure why you need more than a year to circulate a petition, however, if you do it right. The key to me is the decision frees your “speech” from some arbitrary time frame where it can never respond to events in close to real time.

    As Kornmann probably knew, his deadline is back to what it was in the 1990’s when he helped defeat our mining initiatives. Damn him anyway. We had a fun time going up against Kornmann, who was a decent guy, even though he was wrong, really wrong on the mining issue. Kornmann was lobbying during the time the May deadline was established in the 1980’s, so he probably knows that the deadline was proposed by the Republican Secretary of State, and approved by the Republican Senate and Republican House and Republican Governor and was pretty much agreed to by everyone. I had some concerns, but that’s what I got paid to have. In the end we all made it work.

    Cory, I read Kornmann’s decision as an invitation for a future challenge of some of the other bureaucracy that has been added since the 1990’s. People might want to read his decisions carefully and look at the statutes to see where there might be ways to get rid of some of the nonsense.

  9. Arlo Blundt 2021-08-30

    well…you know Initiative and referral were a big issue at the time the constitution was being written because the large corporation (railroads, elevator companies, banks) were writing the legislation….there was a general revolt by the people which brought about Initiative and Referral, as well as the State Motto…an interesting player throughout the 1890’s was Coe I. Crawford, who began as a young lawyer working for the Chicago Northwestern Railroad but who switched sides and became a Progressive politician, Governor, and US Senator. He’s somewhat forgotten as he preceded Peter Norbeck as a reformer. We need him now.

  10. V 2021-08-31

    Thanks Cory, we are lucky to have you on our side.

  11. Cory Allen Heidelberger Post author | 2021-08-31

    “poorly written and sloppily unconstitutional”—Grudz, as Richard notes, you appear to be describing the last three laws that I have successfully challenged in court, each written by Republican legislators, each sloppily written, each infringing on First Amendment rights without any compelling state interest.

  12. Sion G. Hanson 2021-08-31

    Excellent reporting and involvement.

  13. Cory Allen Heidelberger Post author | 2021-08-31

    Donald, you hit a key point: both of the lawsuits I’ve won, SD Voice v. Noem I & II, have established important case law protecting initiative and referendum as core political speech. Kornmann’s rulings on out-of-state contributions to ballot question committees (2018 IM 24), circulator registries and badges (2019 HB 1094), and now the petition deadlines are a strong foundation on which other advocates of direct democracy can challenge the other bureaucratic hurdles Republicans have thrown in the way of our right to vote on laws and Constitutional amendments directly. Anyone who wants to challenge the restrictions on circulator residency, petition font size, the Secretary of State’s extrajudicial review and pre-emption of petitions, and other hassles foisted on us by elitist, anti-democratic legislators will cite Kornmann’s rulings.

    And, if I may let my pride show, these rulings, this valuable framework of precedents, would not exist if I hadn’t spent so much time blogging about ballot measures, learning about and participating in the process as a circulator and sponsor, and finally connecting with the eminently skilled Mr. Leach and taking these matters to court. Years of thinking, studying, writing, petitioning, and campaigning empowered me to take three bad laws to court, get those bad laws repealed, and restore the political rights of hundreds of thousands of South Dakotans. Even if I were a Senator, I’d have never been able to get these three laws repealed legislatively: I’d have secured the votes of the Democratic minority and perhaps some members of the Stace Nelson/Taffy Howard wing of the Republican caucus, but Jim Bolin and the majority of the GOP still would have opposed these repeals and passed offenses like HB 1094.

    Add to that the two bad laws I helped pause and repeal by referendum in 2015–2016—the youth minimum wage, which was meant as the first shot across the bow in the Legislature’s intensified war against initiative rights, and the Incumbent Protection Plan, which sought to wipe out independent candidates and the right of voters to look for options outside the two major parties—and in a span of six years, I’ve managed to do a lot of good for South Dakotans. Pat Powers can’t say that. I feel really good about the work I’m doing, and I’m happy to keep doing it.

  14. Donald Pay 2021-08-31

    Speaking of Jim Leach, I recently read a book by Wyoming attorney Gerry Spence, “The Martyrdom of Collins Catch The Bear.” The book details a murder case coming out of an American Indian Movement action in the Black Hills. The book is dedicated to Jim Leach, who Spence called “…a lawyer who truly represents devotion.” A few years later Leach would represent the Technical Information Project in a hearing before the Board of Minerals and Environment where he helped Deb Rogers exposed the sewage ash scam. And now he’s putting his “devotion” into saving democracy in South Dakota.

  15. John Dale 2021-08-31

    What is the disposition of the legislature to abolish this process all together, now?

  16. RST Tribal Member 2021-08-31

    Cory thanks for speaking up. Unfortunately, you were forced to go to court to correct the inbred Republican legislators law making (?). As noted the inbred Republican legislators along with the Republicans running the state, with the blind leading the blind three Republicans in Washington, want to restrict free flowing democracy in favor of their restrictive version of democracy.

    The U.S. Constitution, along with SD Constitution fair no better then the 1851 and 1868 Peace Treaties my relatives negotiated to end wars with the U.S., with this flock of inbreds. The Congressional Acts after treaty making ended in 1871 could, in time, be found to be without force, then a whole bucket load of people will be left wondering what to do, when their land holdings could be clouded. The inbred’s Constitutional wiggle waggle could be worth less then the copy paper the Constitutions will be printed on.

    In time, the bustling of the inbred Republicans in SD will cause their demise as good people will feel harmed to the point of saying “enough”. That day might be November 2022, or 2024 or beyond. It is coming.

  17. Donald Pay 2021-08-31

    John Dale, the initiative and referendum process is embedded in the South Dakota Constitution. The initiative is a legislative process that the people reserve to themselves. The people would have to vote to abolish thier own participation in the legislative process. That is highly unlikely. The initiative is far more popular than the Legislature is. I would ask what the people’s disposition is to abolish the Legislature? In reality, both will survive whatever snit-fit the Legislature may have.

  18. John Dale 2021-08-31

    Hi Donald;

    You’re under the impression that the legislature cannot change the constitution?

    John

  19. Jake 2021-08-31

    Thanks again, Cory, for your dedicated service to the people of South Dakota! We owe you a great deal for your prolonged efforts to bring fairness back into the picture…

  20. Donald Pay 2021-08-31

    John, the Legislature can propose to the voters a Constitutional Amendment. That’s it. They pass a Joint Resolution, which provides for the voters decision on the Amendment. The Legislature has proposed similar measures before, but they have never passed the Legislature. In the 1970’s, I believe, there was a multiple subject Amendment dealing with reform of the Legislative Branch. It failed largely because of the part repealing the initiative. You might want to bone up on your South Dakota civics and history.

  21. Mark Anderson 2021-08-31

    Way to go Cory! Grudz just wants to be one of the ruled, he’s happy with that.

  22. Arlo Blundt 2021-08-31

    John Dale..I realize I should excuse your obvious oblivious ignorance of South Dakota civic history as you are a new comer to the state….but as a new citizen, I encourage you to join the South Dakota Historical Society and read its Journal and the books through the Historical Society Press. In answer to your query regarding Initiative, Referral and Constitutional Amendment and its fundamental importance to democracy in your new state I suggest you read “Principle Over Party: The Farmers Alliance and Populism in South Dakota 1880-1900” by USD History Professor Emeritus, R. Alton Lee, available through the Historical Society Press.

  23. bearcreekbat 2021-08-31

    While SD history is indeed interesting, informative and relevant, there is a more direct authority indicating that Donald is correct. Section 3 of Article 23 of the SD Constitution explicitly provides:

    Any constitutional amendment or revision must be submitted to the voters and shall become a part of the Constitution only when approved by a majority of the votes cast thereon. (emphasis added)

  24. grudznick 2021-08-31

    Mr. Dale, the legislatures can only submit changes to the constitution to the ignorant voters. You should know that. But would it not be ironic if voters initiated themselves an amendment to the constitution to take away the power of the voters to initiate amendments to the constitution? Oh, grudznick would probably laugh and laugh and laugh.

  25. Bonnie B Fairbank 2021-08-31

    I congratulate you, CAH. You are a long thinker, and far smarter than I.

  26. Porter Lansing 2021-08-31

    John Dale will be gone from SD, soon.

    Either imprisoned in Federal prison or Putin’s penitentiary.

    As an imbedded stooge, he’s poor at his job.

    PS … subscribe to his podcast. It’s how he gets money from Russian trust funds.

  27. drey samuelson 2021-08-31

    Congrats, Cory and Jim–this is a big win! I regret that Judge Kornmann didn’t include constitutional amendments in his ruling–South Dakota is the only state in the nation that allows ballot initiatives and also requires petition signatures to be submitted an entire year before an election, but this is still movement in the right direction, so thank you!

  28. Yvonne 2021-09-01

    Great job, Cory and Mr. Leach. Perseverance, sometimes, can prevail. There probably would not be so many initiatiaties if the legislators and governor did their job and listened to the people they work for. Oops, they dont work for the people, they are there for corporate market interests…we all know that! Hence, more initiatives are really going to abound now in South Dakota. But be aware sponsors of the upcoming initiatives, the freedom of speech robbers are sharpening their meat hooks to find another way around our first amendment rights. It’s all about control and thinning the herd. Took awhile for Hitler to be defeated, but it was done. Patience and perseverance.

  29. Donald Pay 2021-09-01

    Yvonne is right. It takes perseverance. Look at the pot initiatives. I think Newland was the first to bring them in the 1990’s. Then others picked it up. They all failed, until they won. That’s how we were able to make a difference on environmental issues in the 1980’s and 1990’s. You just keep plugging away. But you also don’t ignore the Legislature, the administrative agencies, etc. You have to be active in all areas—lobbying, citizen activism, etc. I think you have to do it all from a grassroots level. Too many of the recent efforts have been from outside a grassroots base, and one offs. That’s a sure way to lose, unless you’ve got a billion dollars.

  30. Cory Allen Heidelberger Post author | 2021-09-01

    John Dale, the Republican Party remains committed to doing whatever it can to render our constitutional right to initiative and refer laws practically impossible. Jim Leach has done excellent work helping me undo some of those monkey wrenches that Republicans have thrown into initiative and referendum, but as we’ve seen in every Session in the last few years, the Republicans keep coming back with more paperwork and bureaucracy (remember, just this year, they passed minimum 14-point font on petitions, unchecked extrajudicial authority for Secretary of State to refuse to allow petitions to circulate, and an additional 15-day delay in getting petitions approved for circulation). The GOP is 100% at war with the I&R process. Sure, the Legislature cannot unilaterally erase I&R from our constitution, but they can continue to engage in this bureaucratic nickel-and-diming that passes mostly unnoticed through every Session due to the arcane nature of I&R. People don’t show up by the busloads to testify against these tricky technical measures. The GOP knows if they just keep chipping away, voters mostly won’t notice. The voters mostly haven’t noticed: they say they’re mad about the repeal of IM 22, they say they support I&R and want less legislative interference, but they keep re-electing the Republican legislators who keep waging war on I&R.

  31. Cory Allen Heidelberger Post author | 2021-09-01

    Grow the grassroots, keep trying for decades—that’s the hard way and the right way to save I&R and to save South Dakota. Republicans will keep trying to destroy it—we small-d democrats, people who oppose elitism and defend the rights of all citizens to captain their community destiny, must keep going to court and applying the United States Constitution. We must also keep pointing out to people that we are fighting for their rights, while the Republicans in Pierre and in other state capitols are trying to take their rights away.

    Remember, John Dale, Governor Kristi Noem has been the first defendant in every one of my lawsuits. Kristi Noem has signed every one of the restrictions on I&R that the 2019, 2020, and 2021 Legislatures have sent to her desk. Kristi Noem is one of the Republicans taking away our rights.

    Billie Sutton wouldn’t be taking away our I&R rights… and if he tried, I’d be able to walk into his office and ask him face-to-face what the hell he was doing.

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