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.