The state has suffered another loss in court over its effort to quash South Dakotans’ right to initiative and referendum. Yesterday the Eighth Circuit upheld Judge Lawrence Piersol’s injunction of 2020 Senate Bill 180 and said the state can’t require paid petition circulators to put their personal information in a public registry.
Before getting to the core First Amendment issues of this case, the state tried to argue that the plaintiff, Dakotans for Health, lacked standing because SB 180 affects petition circulators, not ballot question committees. In its ruling, the Eighth Circuit says ballot question committees are “highly intertwined, if not inseparable”:
The purpose of a ballot question committee is to place a question on the ballot, and this is done only through petition circulators. For starters, section 2-1-1.7 of the South Dakota Code ties the registration of paid circulators to ballot question committees. The circulator must pay a fee to the Secretary of State for each ballot question committee “represented by the paid circulator.” S.D. Codified Laws § 2- 1-1.7. In fact, the relationship is so interconnected that, for all practical purposes, initiative petitions cannot be circulated in South Dakota without a ballot question committee. This is because South Dakota law also requires formation of a ballot question committee, through a statement of organization, “not later than fifteen days after the date” when $500 is spent or raised. Id. § 12-27-3. A violation of this requirement is a Class 2 misdemeanor. Id. In South Dakota, ballot question committees and circulators, then, are interrelated like an army and its soldiers [Judge L. Steven Grasz, opinion, Dakotans for Health v. Kristi Noem, Mark Vargo, and Steve Barnett, 2022.11.01, p. 7].
Besides, if any paid circulator violated SB 180’s registry and badging rules, SDCL 2-1-21 would penalize the ballot question committee. Additionally, SB 180 invalidates any signatures collected by paid circulators who make any error in registering, posing a serious risk to the ballot question committee’s work. And SB 180 makes it harder for ballot question committees to recruit paid circulators. Faced with such potential injury, Dakotans for Health most certainly has standing to challenge SB 180’s circulator registry in court.
Turning to the substance of the First Amendment arguments, the Eighth Circuit says the state must demonstrate that “SB 180’s requirements are substantially related to its important interests in election integrity” and narrowly tailored to achieve those interests. The Eighth Circuit says the state has failed to do so.
The state failed to show that paid circulators pose a greater risk of petition fraud than volunteer circulators. The state failed to justify requiring paid circulators to register their physical addresses, email addresses, and phone numbers before they circulate serves any government interest that outweighs the proven risk of harassment those circulators would face.
Taken together, the pre-circulation disclosure requirements in section 2-1-1.5 are intrusive and burdensome. As such they present a severe burden on speech. We agree with the district court that the pre-circulation disclosure and certification of personal information, as well as the seven-day update requirement, are not substantially related to the State’s interests. While upfront disclosure of petition sponsorship and petition funding may serve an interest in transparency, disclosing a circulator’s phone number, home address, and email address prior to the signature verification process are not substantially related to South Dakota’s interests [Grasz, 2022.11.01, p. 13].
The Eighth Circuit doesn’t make much hay of the following issue, but it is worth remembering that any interest the state has in requiring circulators to disclose their contact information is already met by the pre-SB 180 requirement that circulators submit their names and residential addresses with their sworn oath on their petition sheets after they circulate them. If the state needs to track down circulators, it can do so without subjecting circulators to harassment in their homes before they collect signatures or officially submit any petition.
Paid circulators may thus continue to collect signatures on initiative and referendum petitions without placing their personal information in a public registry and without wearing badges. The Eighth Circuit’s ruling comes just as Dakotans for Health is launching its latest petition drive for a constitutional amendment to codify Roe v. Wade. SB 180 sponsor Representative Jon Hansen is coordinating a campaign to harass circulators of that Roe petition; the Eighth Circuit’s timely ruling at least denies him the opportunity to access circulator names and target them with discouraging calls, emails, and knocks on the door before the circulators even start collecting signatures. The Eighth Circuit’s ruling also averts a bureaucratic nightmare that would have delayed DFH’s deployment of paid circulators until they could register and until the Secretary of State could figure out how to make and distribute badges to paid circulators.
The Eighth Circuit also let stand Judge Piersol’s injunction not just of the circulator registry but of SB 180 in toto. In doing so, the court also leaves non-functional the new 30-day residency requirement for circulators that SB 180’s authors imposed. The League of Women Voters is challenging that residency requirement in separate court action.
On balance, the Eighth Circuit’s ruling on the paid circulator registry is another victory for democracy in South Dakota. Once again, the courts have upheld the idea that circulating petitions for ballot measures is core political speech with which legislators may not lightly trifle. Governor Noem, Representative Hansen, and other enemies of democracy will have to come up with better arguments for their next ploys to stifle the people’s voice.