League of Women Voters, Members Challenge 30-Day Residency Requirement for Ballot Question Petition Circulators

Speaking of petitions, the League of Women Voters—both the South Dakota chapter and the national organization—and LWV members Susan Randall and Kathryn Fahey are suing the state of South Dakota to repeal its requirement that petitioners reside in South Dakota for 30 days before collecting signatures for ballot measures.

In a complaint filed in the Southern Division (that’s the Sioux Falls courthouse) of the United States District Court, the League and member plaintiffs contend that SDCL 2-1-1.3(2), which defines a “petition circulator” as  “a person who is a resident of this state for at least thirty days prior to acting as a petition circulator, is at least eighteen years of age, and who, for pay or as a volunteer, circulates petitions for the purpose of placing ballot measures on any statewide election ballot,” unfairly prohibits folks who want to come to South Dakota and engage in the core political speech of circulating ballot question petitions. The plaintiffs argue that requiring newcomers to reside in South Dakota for 30 days before participating in this vital form of speech violates the First and Fourteenth Amendments (which apply to all citizens equally, no matter what state they inhabit) as well as two provisions of the South Dakota Constitution:

• Article 6 Section 18: “No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.” South Dakota law can’t deny folks who’ve been here for one day or 29 days the rights that folks who’ve been here for 30 days have.
• Article 6 Section 19: “Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.…” Everybody in South Dakota should get to participate in the electoral process, even folks who just got here.

In 2021, South Dakota’s League of Women Voters circulated a petition for an initiated amendment to implement an independent redistricting commission to draw Legislative districts in South Dakota. That petition drive did not get enough signatures to qualify the measure for the 2022 ballot, in part, say the plaintiffs, because this unconstitutional residency requirement stopped members from other states from coming to help with the petition drive:

One potential problem with this complaint is that it targets the definition of “petition circulator” written into SDCL 2-1-1.3 in 2020 by Senate Bill 180, a problematic bill that was crafted in response to a court ruling against a previous petition-stifling bill and which itself remains enjoined by a court order while under appeal at the Eighth Circuit. That definition, denying new residents their right to circulate ballot question petitions until they’ve been in South Dakota for 30 days, replaced a reference to the general definition previously applied to all petition circulators in SDCL 12-1-3, which allows any resident qualified to vote in South Dakota elections to circulate petitions. The plaintiffs rightly complain that the 30-day residency requirement unfairly restricts folks like Randall and Fahey from engaging in core political speech in South Dakota; however, if the court throws out this discriminatory definition and South Dakota law defaults to its pre-SB 180 status, Randall and Fahey still would not be able to circulate petitions because they are not South Dakota voting residents. To gain the relief they seek, the plaintiffs need to challenge not only SB 180’s 30-day residency requirement but the basic residency requirement that preceded it.

The plaintiffs acknowledge that the Eighth Circuit, of which South Dakota is part, upheld North Dakota’s residency requirements for petition circulators in the 2001 Jaeger case. However, the plaintiffs note that the Jaeger plaintiffs failed to provide evidence that the residency requirements imposed great cost and burden on their petition drive. The League of Women Voters provides evidence that SB 180 deprived them of volunteers (namely, Randall and Fahey) and left them with the “unduly prohibitive” option of raising half a million dollars to hire paid circulators.

The plaintiffs note that the Jaeger court accepted North Dakota’s circulator residency requirement as a response to substantial election fraud. “There is no evidence of such fraud in South Dakota,” says the complaint, “to justify SB180’s aggressive restriction on First Amendment speech.” The plaintiffs point to the overhyping, anti-democracy Heritage Foundation’s catalog of “election fraud cases” in South Dakota, which cites just three examples of “ballot petition fraud”. Two were from the 2014 election and involved nutbar fringe candidates, not ballot question petition circulators. The sole listed instance of hijinks on a ballot question petition came from petition forgery committed by a South Dakota resident in 2002. SB 180’s 30-day residency requirement would not have affected any of those three cases. While not mentioned in the complaint, the only example of petition shenanigans sponsors of SB 180 have cited in other court arguments is the alleged involvement of out-of-state circulators in an initiative petition drive in 2017. But in that case, no fraud was ever proven, and the status quo ante-SB 180 was perfectly capable of identifying errors on the petition and rejecting it, without a 30-day residency requirement. The evidence of election fraud that supported the Jaeger residency requirement is lacking in South Dakota.

And since Jaeger, courts have been chipping away at circulator residency requirements, including the federal court in Nebraska in 2011, which ruled in Citizens in Charge v. Gale that requiring circulators to be registered voters (and thus, residents) imposed an unconstitutional burden on free speech and association. In that case, the state provided only three examples of potential petition process fraud, which the court held did not prove a compelling state interest to combat fraud that justified the burdensome costs imposed on ballot question supporters. The plaintiffs thus have ground to push the state past its inevitable easy reading of Jaeger and consider the demonstrable costs and lack of compelling benefits provided by South Dakota’s circulator residency requirement.

While not affecting the main thrust of the argument, the complaint also incorrectly asserts (paragraph 35) that “SB180’s residency requirement applies to candidacy petitions and to initiative and ballot measures including referendum petitions.” SB 180 specifically targeted ballot measure petitions. It excludes candidacy petitions. SB 180 places its definition of “petition circulator” in SDCL Chapter 2-1 on “Initiative and Referendum.” The definition  applies to this chapter alone, not any chapter in SDCL Title 12 on “Elections” dealing with candidates. And as you can see above, the definition explicitly limits itself to a person who “circulates petitions for the purpose of placing ballot measures on any statewide election ballot.” SB 180 does not apply to candidate petitions. The 30-day residency requirement for circulators applies only to statewide ballot measures.

Then again, maybe this misdirection does support the plaintiff’s complaint. By applying the residency requirement only to statewide ballot measures and not to candidate petitions, the Legislature is engaging in viewpoint discrimination. New residents who support putting certain candidates on the ballot are free to carry petitions for the candidates of their choice. However, new residents who support ballot measures, who inherently challenge the Legislature’s authority by asserting the people’s right to make their own laws, must sit idle for 30 days before making their views known through the core political speech of circulating petitions. That viewpoint discrimination formed a central pillar of Judge Charles Kornmann’s decision to throw out 2019 HB 1094, the circulator-oppression bill whose court failure precipitated 2020 SB 180. When SB 180 silences advocates of ballot measures but not candidates, it exposes the Legislature’s desire to protect its power and suppress speech that challenges that power. That’s viewpoint discrimination, and that’s straight-up unconstitutional.

The League of Women Voters is the third group in the last three years to take South Dakota to court over South Dakota Republicans’ ongoing attempts to sandbag the ballot question process and insulate the Legislature from people power. Previous court challenges to South Dakota’s restrictions on voter rights have largely succeeded; now we’ll see if the League of Women Voters can build on this success and further protect your right to participate in making laws.