KELO-TV tries to explain the League of Women Voters’ legal challenge to South Dakota’s 30-day residency requirement for ballot question petition circulators. Unfortunately, reporter Jazzmine Jackson gets the facts completely wrong about one of the core precedents cited in the complaint.
The League’s complaint cites the second federal case where I beat Jason Ravnsborg, SD Voice v. Noem II. Specifically, the League cites U.S. District Judge Charles Kornmann’s August 30, 2021, ruling in the case to claim First Amendment protection against the residency rule enacted in 2020 Senate Bill 180:
The First Amendment prohibits government regulation that would make it “more challenging to circulate petitions and collect the required number of signatures….”…Yet that is precisely what SB180 does [League of Women Voters (SD and US), Susan Randall, and Kathryn Fahey v. Noem, “Doe”, and Barnett, complaint, field in U.S. District Court of South Dakota, Southern Division, 2022.06.28, pp. 14–15].
The League’s complaint does not mention the government regulation at issue in Kornmann’s second ruling in SD Voice v. Noem II, the state’s perniciously early deadlines for filing ballot question petitions. But KELO-TV’s research went wildly astray:
The lawsuit also references SD Voice v. Noem which challenged a bill that would have required ballot initiatives to collect signatures equal to 10% of the total votes cast for the governor in the last election. That was an increase from 5%. The bill also would have required petitions to be filed at least one year before the election it would be voted upon and would confine the time to collect signatures to 24 months [Jazzmine Jackson, “Lawsuit Against Noem Focuses on Ballot Initiative Process,” KELO-TV, 2022.07.05].
That’s just wrong. SD Voice v. Noem II had nothing to do with any bill increasing the number of signatures required to put initiatives on the ballot. The complaint Judge Kornmann affirmed on August 30, 2021, dealt with two state laws that set the deadline for submitting initiative petitions twelve months prior to the general election at which the initiatives would be decided. The bills that moved that deadline back from six months prior to the election were enacted in 2006 and 2009. Neither of those bills changed the number of signatures required on initiative petitions, and neither my complaint nor Judge Kornmann’s ruling addressed whether South Dakota’s signature requirements violate the First Amendment.
KELO-TV further misstates the issue by using the conditional tense. The early deadline wasn’t a matter of would have; state law actually required us to submit initiative petitions twelve months before the election for several election cycles. Judge Kornmann overturned that requirement last year and reset the petition submission deadline for initiated laws to the first Tuesday in May of the election year (which is why you have a second Medicaid expansion initiative and a another chance to decriminalize marijuana on this year’s ballot—you’re welcome!).
KELO-TV’s statement that the law challenged in SD Voice v. Noem II “would confine the time to collect signatures to 24 months” is also simply wrong. State law says initiative petitioners cannot collect signatures earlier than 24 months before the election when they want to vote on their issue, but state law does not give anyone a full 24 months to collects signatures. Even Judge Kornmann’s wise reversal extended the circulation time for initiated measures to 18 months while leaving the circulation time for initiated constitutional amendments at 12 months (a discrepancy the state and I are still appealing at the Eighth Circuit).
I know—this is all election-nerd stuff. It is quite possible that no one else reading KELO-TV’s discussion of the League of Women Voters’ challenge to one circulator residency law will notice KELO-TV’s error in explaining ballot question law and precedent. But if you’re going to tell the story, KELO-TV, you’ve got to tell it right.