Initiative Petition Deadline Still May 3; Eighth Circuit Rejects State’s Plea to Stay Judge Kornmann’s Deadline Order

Given Senator Steinhauer’s effort to coax the hospitals into withdrawing Amendment D, Dakotans for Health might want to keep circulating its Medicaid expansion initiative petition. And thanks to an order from the U.S. Eighth Circuit Court of Appeals today, they can keep circulating until May 3!

Last summer, my ballot question committee prevailed in a federal lawsuit to declare that requiring that initiative petitions be submitted twelve months before the general election was unconstitutionally burdensome. Judge Charles Kornmann of the U.S. District Court for South Dakota moved the initiative petition deadline back to the first Tuesday in May, sixth months before the election, as prescribed by South Dakota law prior to 2006. Appealing the this pro-democracy decision to the Eighth Circuit, the state asked Judge Kornmann to stay his decision. Judge Kornmann refused. The Attorney General’s office recited similar arguments to the Eighth Circuit itself, hoping to at least kill two initiative petition drives before the Eighth Circuit could hear the appeal on its merits.

Well, we all know there’s one thing Jason Ravnsborg is good at killing, and its not initiatives or constitutional arguments. Today the Eighth Circuit issued a terse order denying Assistant Attorney General Clifton Katz’s motion for stay.

Nuts and bolts: this order means Dakotans for Health and South Dakotans for Better Marijuana Laws may continue to collect signatures for their respective Medicaid expansion and marijuana initiatives until May 3, the deadline reëstablished by Judge Kornmann’s August 30 order. The state’s appeal of Judge Kornmann’s ruling may proceed, and with better lawyering (perhaps plaintiff Governor Kristi Noem will decide it’s time to send in Matt McCaulley or some of her other private lawyers?) the Eighth Circuit could still decide that Judge Kornmann and I are both wrong, revert the deadline to twelve months before the election, and make worthless all the signatures D4H and SDBML have collected from South Dakota voters since the fall. But the last time Jason and I had this dance, the Eighth Circuit took a good eleven months after my initial victory to hear our arguments on appeal and another couple months to affirm Ravnsborg’s defeat. If the Eighth Circuit takes thirteen months to hear and decide our appeal fight this time, we’ll get a ruling on the petition deadline around October 1, by which time South Dakotans could already be voting on the initiatives that Ravnsborg is trying to stop.

But the state still hasn’t found an argument that has persuaded any judge that an initiative petition deadline twelve months before the election is a good idea. So circulators, keep circulating! The Eighth Circuit says that’s o.k., for now!