The State of South Dakota is spending more of your money to take away your hard-won rights. On Tuesday, the state notified the United States District Court of South Dakota that it is appealing Judge Charles Kornmann’s August 30 ruling giving South Dakotans back the six months of initiated law petition circulation time that the Legislature took away in 2006 and 2009.
The state is also asking Judge Kornmann to stay his order moving that deadline from this November 8 to May 3, 2022. Judge Kornmann opened the window for citizens interested in proposing new laws for a statewide vote to start that process now and have a fair shot at collecting enough signatures (16,961) to put those measures on the 2022 general election ballot. The state wants to slam that window shut until after the Eighth Circuit Court of Appeals can hear and rule on their arguments.
The last time the state appealed a ballot question ruling, the Eighth Circuit took over a year from the time of the state’s notice of appeal to render its decision. If the Eighth Circuit is operating at similar speed, a stay of Judge Kornmann’s decision would completely wipe out the opportunity to launch new initiated-law petition drives for the 2022 election.
The state’s reasons for requesting a stay are, as we expect from Kristi Noem and Jason Ravnsborg, bunk:
The state cites the usual criteria for Judge Kornmann to stay his decision:
- “the party seeking the stay has demonstrated a strong likelihood of success on the merits”;
- “the party seeking the stay will be irreparably injured without a stay”;
- “a stay would” not “substantially injure other parties”; and
- a stay would serve “the public’s interest”.
The state has already demonstrated its inability to win on the merits in Judge Kornmann’s courtroom. It demonstrated no evidence that a twelve-month deadline is necessary to the state’s interest in an orderly election process; it’s own star witness testified that the state had no problem processing initiative petitions submitted six months before the election. The state’s motion to stay meekly repeats its failed assertions that the early deadline “does not burden the ability of supporters to communicate their views,” but Judge Kornmann endorsed the plaintiffs’ (that’s me) argument that the twelve-month deadline prevents that communication from taking place during the election year, when issues are most ripe and voters most attentive, and burdens voters’ ability to engage in that communication in the context of an actual election, with actual measures on the ballot.
The state then whimpers that, absent a stay, the state’s application of “its duly enacted legislation regarding election procedures” will be irreparably harmed. The state can assert this claim to harm only when the laws it enacts are constitutional, and its twelve-month deadline violates the First Amendment by burdening core political speech.
Beyond that, remember that the state’s own witness testified that, in 2006 and years prior, when the initiated-law petition deadline was the first Tuesday in May, the state’s ability to carry out its election procedures suffered no harm. The state’s witness testified that the Secretary of State’s office would be able to comply with all election procedures today if the deadline were moved back to May. The state’s own testimony says there is no harm.
Furthermore, whatever harm the state imagines will be incurred by allowing citizens to circulate petitions for another six months is entirely reparable by other means, without a stay. If citizens circulate petitions until May but don’t get enough signatures and don’t submit their petitions, there is absolutely no harm to the state. If citizens submit a petition with sufficient signatures on May 3 but the Eighth Circuit hears the appeal and rules for the state before August, the state can simply refuse to place the measure on the ballot. If the Eighth Circuit does not rule before the November 2022 election and voters approve the initiated law, that law won’t go into effect until July 1, 2023; if the Eighth Circuit rules in the state’s favor before that enactment date, the state can declare the initiated measure invalid and refuse to enact it. And if somehow it looks like the Eighth Circuit is going to take more than 21 months to render a verdict and the July 1 enactment date of that late-submitted initiative is looming, the state could go to court and seek an injunction to delay implementation until the Eighth Circuit speaks. Any harm the state claims is minimal, remote, unlikely, and reparable.
The state claims a stay will not harm the Plaintiffs. Horsehockey. The District Court has restored our constitutional rights to circulate initiative-law petitions during an election year, a process we can use to check an unresponsive Legislature whose members are circulating their own nominating petitions for reëlection. The state seeks to take those rights away again, with no new arguments on the flow indicating why Judge Kornmann’s restoration of those rights was incorrect. And if the court suspends those rights again, the harm we suffer is irreparable: we don’t expect to hear back from the Eighth Circuit before the May deadline, and we would lose forever our restored opportunity to place measures on the 2022 ballot. While the harm to the state is at best minimal and entirely reparable, the harm to plaintiffs is enormous and irreparable.
The state finally contends that the your interest, the public’s interest, is best served by reducing your rights. To support its public-interest argument, the state cites Brendtro v. Nelson 2006 (a case which actually demonstrates the value of the May deadline: after the 2006 Legislature failed to pass a bill to repeal a telecommunications tax, sponsors were able to collect signatures starting in March and place an initiative to repeal that tax on the ballot), in which the South Dakota Supreme Court mentioned that having a six months between the petition deadline and the vote on an initiative that repeals a statute” allows for stability in government while the electorate debates the merits of the proposal” and “allows for legislative planning to prepare for circumstances arising if the repeal is successful.” With a spectacular leap of logic, the state contends that the Legislature’s decision to move the deadline back twelve months before the election “supports the proposition the South Dakota Legislature did not feel the six-month deadline gave them adequate planning time to prepare should a proposed initiated measure become law.” The state then expresses its terror at the pending Medicaid expansion initiative and says “the magnitude of what could be at stake” if such a measure passed demonstrates the superior wisdom of the twelve-month deadline.
This public interest argument is ridiculous on multiple levels.
- Nothing in Brendtro v. Nelson justifies a twelve-month deadline. Brendtro affirms that the public interest is served by a six-month deadline.
- The state presents no evidence that legislators read Brendtro v. Nelson 2006 and responded to its by-the-way mention of the six-month petition deadline and responded with a cry for more stability and planning time via a twelve-month deadline. The Legislature started expanding the six-month deadline in winter 2006, before the court ruled on Brendtro in August 2006. We could just as easily assert that the Legislature’s intent was simply to crush initiatives with an unconstitutionally burdensome deadline.
- The Legislature gave itself another seven and a half months to keep government stable and study enacted initiatives in 2017, when it passed 2017 Senate Bill 59, a measure the delayed the enactment of voter-approved initiatives from mid-November to July 1. That delay was another attempt by the Legislature to crush initiatives, subjecting them to Legislative tinkering and override before they could even take effect. But it shows that, if the state here argues that we need to go beyond the guidance of the 2006 court and grant the Legislature a whole year to ponder initiatives, we can respond that, even with the May deadline, the Legislature has almost fourteen months of think time from the final petition submission date to the date of enactment of approved measures. The state needs no stay of Judge Kornmann’s decision and no reversion to the twelve-month petition deadline to get the time the state is pleading for.
- The state and every legislator have known about the Medicaid expansion initiatives since they were proposed last November, two whole years before their possible appearance on the 2022 ballot. The Legislature knew has already pondered and responded to a possible vote on Medicaid expansion by approving a public vote on a constitutional amendment designed to make it harder to pass Medicaid expansion. The public also gets lots of information about proposed initiatives well before the petition deadline, during the petition circulation period. Neither the Legislature nor the public need a twelve-month petition deadline to have far more than six months of conversation about proposed initiatives. The state’s own mention of the Medicaid expansion initiative undermines its own claim that the public awareness requires a twelve-month petition deadline.
But South Dakota’s one-party regime and its corporate cronies are determined to restrict, reduce, and ultimately repeal the people’s right to vote on their own laws, so it’s off to court we go again.
Petitioners, stay tuned: we thought we had a great victory for people power, but now the state is spending more of your money to take that power away.