South Dakota democracy still has a fighting chance in federal court. Yesterday, U.S. District Judge Charles Kornmann denied the state’s request that he stay his own August 30 order giving proponents of initiated laws six more months to circulate their petitions.
Judge Kornmann largely endorsed the arguments I offered against the state’s thin grounds for its request:
- The state has presented no new evidence or novel legal issues that would suggest the Eighth Circuit would come to any different conclusion to that issued by the District Court of South Dakota.
- The state demonstrated no irreparable harm that it will suffer from South Dakotans circulating initiative petitions until May 3 while the Eighth Circuit considers the state’s appeal.
- The plaintiffs (that’s me and my ballot question committee, SD Voice) will suffer irreparable harm if the Court takes away our constitutional right to circulate initiative petitions that can address Legislative action or inaction during the 2022 election year.
- A stay of the order and reversion of the initiated-law petition deadline to November 8 does not serve the public interest: the Legislature has plenty of time to study and plan for initiatives submitted in May, and the public interest is always served by protecting constitutional rights.
Judge Kornmann also responds to the state’s alarm at the Court’s disruption of the status quo in the current election cycle:
Defendants point out that this Court’s prior opinion has “disrupt[ed] the status quo for the next election cycle.”… They are right. This was not an action the Court took [lightly]; rather, it noted that this Court is “not the Legislature and [it does] not write laws.”… However, when state statutes go unconstitutionally astray of the First Amendment, courts have no choice but to disrupt the status quo. The “First Amendment ‘has its fullest and most urgent application precisely to the conduct of campaigns for political office,'” and here, for ballot initiatives.… While this Court’s opinion has altered filing deadlines for the upcoming 2022 November election, the First Amendment demanded such a disruption [Judge Charles Kornmann, Memorandum and Order, SD Voice v. Noem II, 2021.11.03].
When the status quo created by the state violates the First Amendment, we must disrupt it.
The state will now likely plead for the Eighth Circuit to stay Judge Kornmann’s decision. I will continue to resist that stay and the State’s appeal so that all of you South Dakotans have the chance to exercise your constitutional right to respond to the 2022 Legislature’s failings by placing initiated laws on the 2022 ballot.