Oral Arguments Before Eighth Circuit on SB 180: State Claims Fraud and Error Require Paid Circulator Registry and Badges; Plaintiffs Say Status Quo Works, SB 180 Violates First Amendment

Rapid City attorney Jim Leach had to spend his St. Patrick’s Day in St. Paul, Minnesota, defending South Dakotans’ right to circulate ballot question petitions without undue government interference. Leach represented Dakotans for Health before the Eighth Circuit Court of Appeals, which heard oral arguments on March 17 in Dakotans for Health v. Kristi Noem, in which the State of South Dakota is appealing the U.S. District Court of South Dakota’s rejection of the state’s ongoing effort to stifle ballot measures by requiring paid circulators to register and obtain badges before collecting petition signatures. This lawsuit concerns 2020 Senate Bill 180, which the Legislature passed to get out of the trouble it created with a previous unconstitutional circulator registry and badging scheme.

(Per Eighth Circuit policy, all lawyers arguing before the Court had to submit written proof of covid-19 vaccination or a negative coronavirus test within 96 hours of the hearing date. Everyone in the courthouse had to wear masks; lawyers could ask the court’s permission to remove masks while presenting oral argument, but they had to put those masks back on while seated at the counsel table. The court clerk cleaned the courtroom between arguments and put clean covers on each courtroom microphone.)

It’s the state’s appeal, so the Eighth Circuit started with James E. Moore, whom the state had to call up from Woods Fuller in Sioux Falls. Moore said the court must distinguish unconstitutional burdens from reasonable regulations. He claimed that the state is regulating its own initiative and referendum process and thus is limiting a state-created right that is subject to less scrutiny by the federal courts than any federally created right.

One of the judges asked Moore how that position squares with, among other cases, Meyer v. Grant (1988), in which a unanimous United States Supreme Court said that Colorado’s attempt to ban payment of petition circulators attempting to exercise their state-based right to participate in initiatives infringes on federally protected political speech. The judge also said many cases relating to state laws relating to the election of judges still invoke federal First Amendment issues. Why does the state-process argument matter when the First Amendment is still the overriding law of the land? Moore responded that the state is not claiming there is no First Amendment issue; the state is only asking for deference to the state’s interest in regulating its own processes. Moore justified this call by claiming the state’s interest in keeping fraud and mistakes out of the petition process and said the public registry of paid circulators helps the public participate in that process.

Moore said that the 2018 court case that invalidated an initiative petition for a prescription drug price cap provides empirical justification for SB 180 to reduce fraud and mistakes in the petition process. However, one judge asked if that case dealt solely with paid circulators, and Moore admitted it didn’t. Another judge asked if that 2018 provided evidence of corruption or merely clerical errors, and Moore conceded that was a fair question and said the state wasn’t prepared to claim that case demonstrated fraud or corruption. One judge thus asked if SB 180 was “underinclusive” and failed to address the real problem by focusing on paid circulators instead of all circulators and that state law prior to SB 180 was insufficient to prevent flawed from petitions from placing measures on the ballot (even though, I must interject, pre-SB 180 law caught the errors on the prescription drug price cap petition and prevented the placement of that initiative on the ballot). Moore maintained that paid circulators were the primary problem in the 2018 case, but one judge noted that the stated reason for SB 180 and the unconstitutional legislation it narrowed was to keep liberal out-of-state interests from influencing local South Dakota politics. Moore responded that any partisan intent by legislators does not erase legitimate nondiscriminatory reasons for the law.

Then it was Jim Leach’s turn. he led off with a reminder that Buckley v ACLF (1999), a case that has been central to the legal framework Leach has developed to win other cases protecting petition rights in South Dakota, establishes that petition circulation is core political speech for which First Amendment protection is “at its zenith.” Leach said the public registry created by SB 180 subjects paid circulators to harassment that threatens their free speech. Leach argued that the state has no legitimate interest in making paid circulators’ names, home addresses, emails, and phone numbers available to the public at the beginning of the petition process.

One judge asked if the SB 180 registry would be acceptable if it only published names and addresses. Leach said no, because addresses let opponents harass circulators at home. Another judge asked why the state has an interest in disclosing circulator information at the beginning of the process when it already discloses circulator information at the end of the process with the circulator verification on each submitted petition sheet. Leach could have said, “Hey, you’re asking the wrong guy; ask the state!” But never a wise guy in court, Leach simply agreed with the premise of the question and said that upfront disclosure is an enormous problem with SB 180. He said the state doesn’t need any information about circulators until it receives the signatures and counts its random sample to validate the petition, and the state already has a rule in place (ARSD 05:02:08:07) to collect names and addresses when circulators finish collecting signatures. SB 180’s early disclosure is thus redundant and disconnected from the state’s legitimate interest, so SB 180 can’t withstand any standard of review.

A judge asked if SB 180 could require upfront disclosure to a private directory, used only by the Secretary of State to investigate allegations that circulators are coercing or harassing people. Leach said coercion and harassment don’t seem likely to persuade people to sign petitions. He also said that people don’t need SB 180 to call the police on circulators who are misbehaving. The judge persisted, saying that asking circulators to give their contact information to the Secretary of State in a private database puts a pretty low burden on paid circulators. Leach responded that such a whittled-down SB 180 still imperils the core political speech of petition signers by threatening to throw out their signatures if circulators fail to update any change in contact information within seven days, and even a secret registry is still a burdensome response to the hypothetical and thin possibility that some crazy circulator will try to collect signatures by getting in people’s faces and misbehaving… to which the judge said Leach was right, that other parts of SB 180 create burdens.

When the judge says “You’re right” from the bench during oral arguments, you know you’re having a good day in court.

Leach elaborated on his point about the burden on voters’ political expression, saying SB 180 unfairly penalizes honest voters by disqualifying their signatures just because a circulator goes back to college or moves for some other reason after circulating a petition and forgets to update her address with the Secretary of State.

Offering a third distinct point of objection to SB 180, Leach said SB 180 discriminates against paid circulators. Leach reminded the court that Citizens United (2010) says money is speech, and a measure that targets paid speech but not volunteer speech violates that principle. Leach also noted that any concern about corruption caused by money in the initiative process is mitigated by the fact that money can’t buy any quid pro quo favors in the initiative process: you can’t bribe an initiative for a favor the way you can bribe a candidate, so that’s one less interest the state can claim in regulating paid circulators.

One judge asked if paid circulators have any higher level of fraud or error than volunteer circulators. Leach said the only evidence the state presented to that effect comes from Representative Jon Hansen, who participated in the challenge to the 2018 initiative petition and who is a “compromised witness” due to his statement about the partisan intent of the state’s regulations on petition circulators. Even putting that aside, said Leach, Hansen can only point to one instance of paid circulators apparently doing flawed work, the 2018 petition, and in that case, the state’s two-part process worked. The Secretary of State found some clerical errors, the circuit court found more clerical errors, and the petition was disqualified, without ever accessing any question of widespread fraud or abuse.

The judge persisted, arguing for the state that paid circulators have an inherent financial interest in cutting corners and forging signatures, triggering the state’s interest in preserving integrity in the process. Leach said the courts have maintained in Buckley and elsewhere that paid circulators have added incentives to do everything right: if they cut corners and forge signatures, they’ll lose their jobs and not get hired for future petition drives.

Leach concluded with a stunningly conservative statement. He quoted Justice Clarence Thomas: “Political speech is ‘the primary object of First Amendment protection’ and ‘the lifeblood of a self-governing people.’” Leach said “thankfully” we have decisions like Citizens United following that principle, and he said Judge Lawrence Piersol’s decision on SB 180, the decision under appeal here, “correctly follows that principle.” “To do anything other than to affirm would be to let a little of the lifeblood out of the First Amendment.”

In rebuttal, Moore appealed for “some leeway” rather than “considerable leeway” and said the state doesn’t have to provide empirical justification for regulating petition circulators. After less than 30 seconds, a judge interrupted to ask why SB 180 has to publicly disclose circulator information and said public disclosure would only create harassment of circulators. Moore said if that’s a problem, the state could sever public disclosure from the bill. Moore reiterated that the public plays a role in preventing and correcting mistakes. He said no one has ever contacted the Secretary of State to get circulator information, so the registry creates no burden. But the judge persisted, asking what could possibly be furthered by public disclosure of circulator information. Moore talked about standards of review, but the little time he had left that wasn’t consumed with judges’ questions lacked the coherence and punch of Leach’s well-prepared and well-delivered statement.

The Eighth Circuit panel may now take its sweet time in considering these March 17 arguments, counsels’ responses to their questions, and the briefs submitted on 2020 SB 180.