I was talking with an acquaintance with a fair political background but no knowledge of South Dakota politics or my own political activity. I mentioned my involvement in litigation against the state of South Dakota.
“What are you suing them for?” the acquaintance asked.
“I’m challenging petition deadlines. South Dakota requires that petitions for citizen initiatives be submitted twelve months before the election.”
Without any pause, my acquaintance said, “That’s bulls—.”
The Eighth Circuit Court of Appeals agrees completely. It took the federal court four months to reach the same conclusion my acquaintance reached in under a second, but in a ruling released yesterday, a three-judge panel consisting of appointees of Bush, Bush II, and Trump concluded that this liberal Democrat’s argument against a Republican state’s prohibition on the circulation of initiative petitions within 12 months of the election at which petitioners seek a statewide vote on their issues violates the First Amendment.
I filed this challenge (under my name and under the name of my ballot question committee, SD Voice) in July 2019, as part of a broader lawsuit, SD Voice v. Noem II, seeking to overturn South Dakota’s burdensome initiative petition deadlines as well as new and onerous restrictions on people who circulate ballot question petitions. The U.S. District Court of South Dakota heard my and my lawyer James Leach’s thrilling arguments and the state’s underwhelming responses in December 2019. Judge Charles Kornmann swiftly (in January 2020) ruled in our favor on the circulator restrictions but did not address the petition deadline question until the Eighth Circuit ordered him, on our appeal, to do so. In August 2021, Judge Kornmann ruled that the state can justify a twelve-month deadline for petitions for constitutional amendments but not for petitions for initiated laws. Judge Kornmann reset the deadline for the latter petitions to six months before the election, the deadline that existed in statute before 2006. The state appealed the six-month deadline for initiated laws; I appealed the remaining twelve-month deadline for initiated amendments. The Eighth Circuit heard oral arguments in October 2022.
Yesterday the Eighth Circuit said I’m right and the state and any 12-month petition deadlines are wrong.
The Eighth Circuit’s ruling hinges on the nature of circulating petitions for ballot measures as “core political speech” protected by the First Amendment. “The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.… Signing a petition is an expression of a political view, even if that view is as simple as believing an issue should be voted on by the entire state.” The primary purpose of the First Amendment is “to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” While the initiative process comes from the South Dakota Constitution and is not guaranteed by the United States Constitution, “The State, having chosen to tap the energy and the legitimizing power of the democratic process, must accord the participants in that process the First Amendment rights that attach to their roles.”
The Eighth Circuit finds that South Dakota’s 12-month statutory deadline for submitting petitions infringe on our First Amendment rights:
The filing deadline under South Dakota Codified Laws § 2-1-1.2 implicates these principles. SD Voice has sought and will continue to seek political change via circulating petitions to amend South Dakota law. South Dakota’s filing deadline, however, “limits the number of voices who will convey [the proposed] message” during the year before the election. Meyer, 486 U.S. at 422–23. In fact, it effectively prohibits circulating petitions during the year prior to the election. SD Voice put on evidence explaining the benefit of having more time to secure signatures, including more chances to speak with voters about issues and train circulators. South Dakota’s filing deadlines also make “it less likely that [SD Voice] will garner the number of signatures necessary to place [a] matter on the ballot, thus limiting [its] ability to make [its political causes] the focus of statewide discussion.” Id. at 423. As SD Voice aptly observes, a “person who circulates a petition within one year of the election, or who signs such a petition, engages in a futile act.” And in Heidelberger’s experience, voters pay more attention to political issues during an election year. This is not surprising. It is common sense that cabining core political speech in the form of petition circulation to a period no closer than a year before an election would dilute the effectiveness of the speech. In these ways, the Supreme Court’s reasoning that applied to the restriction in Meyer parallels the filing deadline here [Judge L. Steven Grasz, Eighth Circuit Court of Appeals, opinion, SD Voice v. Noem II, 2023.02.17, p. 7].
The Eighth Circuit says such a burden on core political speech may only stand if the state can demonstrate some “important regulatory interest” that the burden serves. “As best we can tell,” says the court (suggesting the state didn’t make its arguments perfectly clear), “South Dakota offers three distinct interests: election integrity, administrative efficiency, and the Legislature’s ability to respond to petitions.” Yet the Eighth Circuit endorses the District Court’s finding that the State put “nothing in the record that even suggests that the one-year requirement lends anything of value to the State.”
The Eighth Circuit agrees that election integrity is “paramount” and recognizes the importance of administrative efficiency but said South Dakota offers no evidence that it needs a whole year before an election to validate petitions. Quite the contrary: the state’s own star witness, then-director of the Division of Election Kea Warne, told the court that the Secretary of State validates referendum petitions in two days and never failed to complete its validation of petitions when the state had the short six-month submission deadline.
As for Legislative response, the Eighth Circuit said “South Dakota offers no authority recognizing this interest.” Even if the state had justified its notion that the Legislature needs time “to plan and prepare” for initiatives, the court says the Legislature already has plenty of time:
A petition submitted as late as May—i.e., six months before the general election—would be certified no later than twelve weeks before the November election. Id. § 12-13-1. In November, if the voters approve a certified ballot question, the corresponding law will go into effect in July of the following year. Id. § 2-1-12. But before then, starting in January, the South Dakota Legislature begins its legislative session. S.D. Const. art. III, §§ 6–7. During that legislative session, the Legislature could consider potential ramifications of any laws approved by the voters but not yet in effect.
In these ways, SD Voice correctly observes South Dakota “already has what it says it needs: an intervening legislative session between a general election and the date an initiated law becomes effective.” See Buckley, 525 U.S. at 196 (rejecting an asserted interest as already “served” by a separate legal requirement); Meyer, 486 U.S. at 425–26 (rejecting an asserted interest as already “adequately protected” by other means). South Dakota might prefer a second legislative session “to respond to the proposed initiative measure before it is placed on the ballot,” but South Dakota did not present evidence of how a second session satisfies this interest [links added; Grasz, 2023.02.17, pp. 13–14].
The one-year submission deadline for initiative petitions burdens core political speech. The state “failed to provide evidence connecting the one-year deadline to its asserted interests.” The one-year deadline thus violates the First Amendment and the state cannot enforce it.
The Eighth Circuit applies this rationale equally to petitions for initiated laws and petitions for initiated constitutional amendments:
On appeal, SD Voice argues the district court should have reached the same conclusion as it did for the filing deadline for petitions to initiate State statutes.
Neither the district court nor South Dakota offers any legal basis for distinguishing the deadlines to submit petitions to initiate state statutes from petitions to amend the state Constitution. Nor do we discern one. The statutory language, the proffered state interests, and the evidence are virtually identical for both deadlines. Applying the same legal framework and record available for the filing deadline under South Dakota Codified Laws § 2-1-1.2, we are left with no choice but to conclude the filing deadline under South Dakota Codified Laws § 2-1-1.1 also violates the First Amendment. We thus reverse the district court’s holding that the filing deadline in South Dakota Codified Laws § 2-1-1.1 is constitutional [links added; Grasz, 2023.02.17, pp. 14–15].
The state did not suffer a complete loss—and here’s where things get complicated. The state argued that the District Court lacks the authority to set a new six-month deadline to replace the unconstitutional twelve-month deadline. The Eighth Circuit agreed:
Rather than enjoin the unconstitutional provision and allow the South Dakota Legislature to decide how to respond, the district court took an “additional step” to remedy a First Amendment violation. See Miller, 967 F.3d at 733 n.1. Yet, prescribing a new filing deadline is outside the scope of the district court’s authority. See Republican Party of Ark. v. Faulkner Cnty., 49 F.3d 1289, 1301 (8th Cir. 1995) (“Cognizant of our role as a federal court, we do not purport to advise Arkansas on the best means of rendering constitutional its election code: that decision rests with the sound judgment of the Arkansas legislature.”). We thus remand with instructions to modify the permanent injunction and remove the new filing deadline [links added; Grasz, 2023.02.17, p. 15].
So the deadline on the books—November 5, 2023—for initiative petitions in South Dakota is unconstitutional and cannot be enforced. The previous deadline to which Judge Kornmann said the law should default—May 7, 2024—was improperly imposed by the judiciary and cannot be enforced.
Thus, the question on every petition sponsor‘s mind is, When are our petitions due?
The answer is… We don’t know!
Or, if we follow the Eighth Circuit’s apparent suggestion, we won’t know until the Legislature enacts a new deadline that conforms to the First Amendment parameters that Judge Kornmann and now Judges Loken, Gruender, and Grasz have laid out.
The Legislature is, of course, meeting right now. The Eighth Circuit has fortuitously delivered this ruling in the middle of the 2023 Session, just days before Crossover Day, when House members all get to sit in the prettier Senate chamber/legislators all dress in drag all bills must either pass in their originating chamber or die. While legislators have not proposed any bills this Session dealing with petition deadlines, they could easily hoghouse one of the few pending bills related to ballot measures. The best candidate for a hoghouse would be House Bill 1200, a poorly written and mathematically unworkable bill imposing a geographical quota on petition signatures. HB 1200 is sponsored by fringe radicals and thus stands little chance of passing, and even if it did, there’s a strong likelihood I could get the federal courts to throw it out too as unconstitutional. HB 1200 is the only ballot question bill that hasn’t received any hearing or votes yet, so when it comes up Tuesday to House Local Government, it is the perfect vehicle for a hoghouse to fill the deadline vacuum created by the Eighth Circuit.
And since it’s my lawsuit that created this trouble, I’ll happily write the hoghouse for you. Chairwoman Drury, I move to amend HB 1200 as follows:
- On page 1, line 1 of the Introduced bill, delete “require a percentage of signatures on a petition to initiate a constitutional” and insert “to revise the deadlines for submitting petitions for initiated constitutional amendments”.
- On page 1 line 2, delete “amendment to be obtained from each legislative district” and insert “and initiated measures.”
- On the Introduced bill, delete everything after the enacting clause and insert:
Section 1. That § 2-1-1.1 be AMENDED:
2-1-1.1. Initiated constitutional amendment–Petition–Contents–Signatures and filing.
The petition as it is to be circulated for an initiated amendment to the Constitution shall be filed with the secretary of state, including an electronic copy of the petition as it is to be circulated, prior to circulation for signatures and shall:
(1) Contain the full text of the initiated amendment in fourteen-point font;
(2) Contain the date of the general election at which the initiated amendment is to be submitted;
(3) Contain the title and explanation as prepared by the attorney general;
(4) Be accompanied by a notarized affidavit form signed by each person who is a petition sponsor that includes the name and address of each petition sponsor; and
(5) Be accompanied by a statement of organization as provided in § 12-27-6.
Each petition circulator shall provide to each person who signs the petition a form containing the title and explanation of the initiated amendment to the Constitution as prepared by the attorney general; any fiscal note prepared pursuant to § 2-9-30; the name, phone number, and email address of each petition sponsor; and a statement whether the petition circulator is a volunteer or paid petition circulator and, if a paid circulator, the amount the circulator is being paid. The form shall be approved by the secretary of state prior to circulation. The petition form, as prescribed by the State Board of Elections, shall include the paid circulator identification number within the verification of any paid circulator.
For any initiated amendment petition, no signature may be obtained more than twenty-four months preceding the general election that was designated at the time of filing of the full text. The initiated amendment petition shall be filed with the secretary of state
at least one yearno later than the second Tuesday of July before the next general election. A sworn affidavit, signed by at least two-thirds of the petition sponsors, stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state. The form of the petition otherwise, including petition size and petition font size for ballot measure language not prescribed in this section, and the affidavit shall be prescribed by the State Board of Elections.Section 2. That § 2-1-1.2 be AMENDED:
2-1-1.2. Initiated measure–Petition–Contents–Signatures and filing.
The petition as it is to be circulated for an initiated measure shall be filed with the secretary of state, including an electronic copy of the petition as it is to be circulated, prior to circulation for signatures and shall:
(1) Contain the full text of the initiated measure in fourteen-point font;
(2) Contain the date of the general election at which the initiated measure is to be submitted;
(3) Contain the title and explanation as prepared by the attorney general;
(4) Be accompanied by a notarized affidavit form signed by each person who is a petition sponsor that includes the name and address of each petition sponsor; and
(5) Be accompanied by a statement of organization as provided in § 12-27-6.
Each petition circulator shall provide to each person who signs the petition a form containing the title and explanation of the initiated measure as prepared by the attorney general; any fiscal note prepared pursuant to § 2-9-30; the name, phone number, and email address of each petition sponsor; a statement whether the petition circulator is a volunteer or paid petition circulator and, if a paid circulator, the amount the circulator is being paid. The form shall be approved by the secretary of state prior to circulation. The petition form, as prescribed by the State Board of Elections, shall include the paid circulator identification number within the verification of any paid circulator.
For any initiated measure petition, no signature may be obtained more than twenty-four months preceding the general election that was designated at the time of filing of the full text. The initiated measure petition shall be filed with the secretary of state
at least one yearno later than the second Tuesday of July before the next general election. A sworn affidavit, signed by at least two-thirds of the petition sponsors stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state. The form of the petition otherwise, including petition size and petition font size for ballot measure language not prescribed in this section, and the affidavit shall be prescribed by the State Board of Elections.
I propose the second Tuesday of July, roughly four months before the general election, as the new deadline. This date reduce conflict with referendum petitions that come in during the last week of June and must be validated before the laws they refer take effect on July 1. The second Tuesday avoids conflict with July 4, making sure the Secretary of State’s hard-working staff can take Independence off and rest up for any petition validation that may come up amidst their other general election preparations. This deadline also aligns with deadlines in Arkansas, Nebraska, and North Dakota, fellow Eighth Circuit states who require ballot measure petitions be submitted no later than early July.
The Legislature may consider other dates (Colorado takes petitions until early August, three months before the election!), but the Legislature should note that while the Eighth Circuit has rejected judicial imposition of a deadline, the Eighth Circuit leaves standing Judge Kornmann’s finding that “the First Amendment requires the State to hold a filing deadline no earlier than six months before the election….” As my acquaintance said yesterday, a one-year deadline is bovine excrement, and judges of very differing political persuasions agree that the Legislature must scrub that excrement from South Dakota law and replace it with more suitable, later deadlines.
The Legislature cannot ignore this issue. One constitutional amendment petition is already circulating; others initiatives may follow. The sponsors of those measures, not to mention the Secretary of State, have to know when their petitions are due. Absent immediate Legislative action, the Secretary of State would not know if she can accept petitions after this November 5, or after next May 7, or maybe even right up until the day before she must print ballots and deliver them to county auditors on August 13. We cannot wait for the 2024 Session. We cannot wait for Attorney General Marty Jackley to petition the Supreme Court for a hearing that wouldn’t resolve this matter until the summer of 2024. The Legislature must resolve this question now, in accordance with Friday’s ruling and the First Amendment rights of South Dakotans to circulate initiative petitions during an election year.
Madame Chair, I will stand by for your questions.
Winna Winna – Pheasant Dinna
This opinion is a stunning victory for direct democracy in South Dakota, and is particularly remarkable because–as Cory noted- the three judges who decided it were appointed to the 8th Circuit Court by Bush, Bush II, and even Donald Trump! Since 2015, I’ve spent a great deal of time working on progressive ballot initiatives in South Dakota, and I’ve seen more times than I care to remember ballot initiatives being either thrown out because there wasn’t sufficient time to gather the required signatures, or not even attempted because of concerns about the severely restrictive time requirement.
I was so thrilled with this decision that I called Jim Leach to congratulate him, and he went out of his way to give an enormous amount of credit to Cory, not only for being the plaintiff, but especially for educating him on the issue itself. After hearing that from Jim, I put $100 in Cory’s tip jar, and I’d urge anyone else who feels strongly about direct democracy in our state to leave a token of their appreciation for Cory, as well!
Thank you and Jim Leach for your battles for the people of South Dakota. Even the “Pubs” will benefit from your efforts-some day.. They simply are “overextending” themselves, and will be a minority party one of these days and will suffer under the same regulations/ laws and injustices they have forced the rest of us to live under for so long.
Yeah Drey, the tip jar is SMALL payback for the benefits of having Cory’s research capabilities, insight and editorial content we gain from reading his ever-improving blog. Coupled with Leach’s professionalism and capabilities-what a team for SD! Thanks Again!
Great job, Cory and Jim. It is a great victory for the People of South Dakota. I point out that these People have been unjustly deprived of their First Amendment rights for, what?, about two decades? by this unconstitutional law. That’s something the needs to be pointed out by Noem’s education department as they write the history of South Dakota. The Republican Party stripped South Dakotans of their First Amendment rights for years, as they followed the dictates of the South Dakota elitists in the Chamber of Commerce, Big Ag groups, the Municipal League, the SD Mining Association, the huge garbage disposal conglomerates and others. It’s a great defeat for the elitists and a great win for progressives and true conservatives.
Cory, Please report on the menstrual tax exempt bill HB 1159 that failed in committee. This is an unfair tax on women, especially considering Viagra is tax exempt in SD. MN leading the nation as always became the first state to end the ‘tampon tax’ way back in 1981.
https://sdpb.sd.gov/sdpbpodcast/2023/hap24.mp3#t=10545 All of the male legislators on the appropriations committee voted against HB1159. Go figure.
Yes, the deadline is open. So, the Legislature has to act or the petitions will come in at whatever time the sponsor want, and will have to be counted.
Kornmann’s deadline was around the date it was for a number of years, and things worked well. It was after the big crunch of the legislative session, but before the June primaries. In those days counting the signatures presented a bit more of a challenge for the Secretary of State’s office. With the sampling system used now, it doesn’t take much time at all. The deadline could be August now and present no problems.
I feel South Dakota to my bones today and my bones love and appreciate you, Mr. H. Thank you.
Thank you, friends. I am thrilled that this effort to restore and strengthen the First Amendment rights of every South Dakotan to participate in direct democracy has succeeded. Thanks to Jim Leach’s expert lawyering in both of my cases (first repealing IM 24, the ban on out-of-state contributions to ballot question committees, then beating HB 1094’s circulator registry and badges and the submission deadlines) and in the successful litigation for Dakotans for Health (repealing all of SB 180, in which the Legislature tried to salvage its circulator registry and badges), we have provided a vital body of court precedent and protection of direct democracy rights against a constant barrage of Legislative attacks on initiative and referendum.
This victory is a Bidenesque BFD for South Dakota and the First Amendment.
But yeah, we’ve got resolve that deadline… or do we?
As Donald suggests, absent a specific deadline, it would seem that the remaining laws require the Secretary of State to count signatures on initiative petitions no matter when they are submitted. Could it be that, if the Legislature does not act, the deadline would default to the practical deadline of ballot printing in August?
I just want to say thank you for all the work you have put in. I appreciate it. Well done!
Not to “side-track” anyone’s thoughts at all on this very important subject; but All Mammals input on the 8 male 1 female committee sinking the ‘feminine products’ bill this way shows everything needed to know about how the GOP runs government.
Noem, thru the legislature, recently gave 4.7 million $ to a dairy CAFO- and this 8 male GOP committee all voted to kill not-taxing feminine products that 50 % of our citizens use (their own wives, mothers, girls etc) to protect against infections etc., –but wait for it now–they’ve had Viagra (to make a man FEEL like a man!) be untaxed for years and years!! Hypocrites all.
Jenny- this legislative session, it started out as a joke predicting MN’s polar opposite stance to every successful bill passed here in SD. Now, it is a guarantee MN does something opposite and awesome to the bills introduced by the SD leg’s sophistry. For instance, while SD narrowed voter eligibility, MN expanded. Where SD stole women’s equality, MN codified it. Where SD welcomed pipelines and mines, MN gave them the boot. Predicting what MN is doing is easy just by looking at what SD is up to. MN is the great, wet hope.
Outstanding work, Cory. What do you think the impact will be on the reproductive rights petition currently in circulation?
Cory writes: “The sponsors of those measures, not to mention the Secretary of State, have to know when their petitions are due. Absent immediate Legislative action, the Secretary of State would not know if she can accept petitions after this November 5, or after next May 7, or maybe even right up until the day before she must print ballots and deliver them to county auditors on August 13.”
No matter what the Legislature does or doesn’t do, the SOS still has to do her job. Having a reasonable deadline that meets both the SOS timelines and the needs of the petitioners is the best compromise. That was done in the 1980s. If the Legislature doesn’t act to set a statutory deadline there is no deadline. (Technically, there was no deadline before the 1980s, Most petitions were submitted before the end of the Legislative session.) The date in the current statute is voided by both court decisions. Kornmann’s date is voided by the 8th Circuit . If there is there is no valid deadline in statute, she must accept the petitions on whatever date the sponsor submits them and must process them as usual. If she doesn’t do her job, she’ll be guilty of violating the First Amendment rights of the petition signers, and the South Dakota electors, and violate her oath of office.
Amazing work, Cory. As we are in the midst of collecting signatures, this is much appreciated and it is so apt that the court included constitutional amendments. As usual, these decisions are not done until they are done so we must move forward constantly and with a great deal of persistence. BTW: what do foresee happening with https://sdlegislature.gov/Session/Bill/23797 HB 1217 the bill to restrict absentee voting. It’s making its way through session unfortunately.
They are setting young Ms. Monae up to fail. It was inevitable anyway. Her tiny brain will constrict, cramp, and implode.
Great work Cory!
Lord of the Rings has the answer?
Saruman is evil wizard or Republican officials. Gollum/Smeagol is elected Democrats, craving the Ring.
Smeagol used to be a good guy, but now luzardlike just wants the Ring.
The Trees destroyed Saruman’s town (Pierre) by flooding it by breaking the damage.
Frodo knew he couldn’t carry the Ring to Mt. Doom because he was getting corrupted by it. So Gollum (Democrats) carried the Ring , fell into Mt. Dom and the Ring that Saruman wanted was destroyed.
Mordor is the state of South Dakota. Where Saruman/Noem-Daugaaaard live is Pierre.
So who are the Trees, who are the Hobbits, in this analogy, and where is Mt Doom?
The Ring is absolute power.
Maybe the Trees are the absolute fury of Nature as wrongs keep being perpetuated
Frodo and the Hobbits are us, as in, hey let’s destroy the Ring and have peace everywhere.
Aragon, the new king? Maybe the journalists, the truth tellers. Slaying evil lies with the whole truth.
I can’t say Mt Doom is the voters voting the “right” way. No.
Where evil total power was created, it can be destroyed there too–aha Mt Doom is the mind, where lies and falsehoods are always destroyed!
It is a great universal story. Chris Lee who originally wanted to be Gandalf but was great as Saruman said he wanted to show Saruman fully, not as a monolith but as having good and bad qualities. So somewhere along the way Noem and Daugaaaaaard became Saruman and enjoyed doing bad things, thinking it was good.
For us, we as Hobbits, what do we do to get the Ring destroyed? Also, who or what are the powerful Trees?
Lord of Rings is a parable on so many levels.
I guess a lot of Republicans think Biden or Obama are Saruman!
Tolkien wrote the first 2 books on 1954! And Return of the King in 1955! So that indicates that great writing can happen rather quickly
A parable can be powerful when it inspires us and energizes us to do good and great things.
The Big Lie swept Hitler and Stalin and Mussokini and Franco abd other dictators and wannabes like Trump into power. Slaying lies. That what King Aragon did, that what we do as Governors Now. We arent Governors for 4 years. We are Governors Now. We are Governors forever. Like Aragon.
Hobbits simply wanted peace.
The Trees wanted and got justice. (Sarumans city was destroyed). Not in the courts; but in the raw unreversible power of Nature.
All races in South Dakota are peace seeking Hobbits. We have to be Governors Now like Aragon, and not tolerate the big lies. And we know that the Trees or Nature can topple whatever Mordor like atrocities that are built against Nature and animals and people. All 3 are opposing forces to the comfort seeking Ring grabbing force that seeks to make call of us in their white image
The triumph is in the thinking and good actions that we do.
I greatly doubt the current legislature will get their poop well grouped enough to get a date set in statute. And if they do, they will not make it an “emergency” and get it into effect before July1. Ms. Monae may be having her head placed on the block of a 1st amendment suit “accidently” by the legisalatoratti. We will see.
Mr. ABC, are you trying in some overly wordy, Zitterich-like, convoluted way to say that grudznick looks like Mr. Gollum?
Bill Fleming looks more like Gollum every day, for sure.
Absent a Legislative decision, I think people who bring initiatives should ask the SOS what time frames would be best for the SOS that would be best for that office.
As per Kornmann’s order, it must be no more than 6 months before the election, which would be May, so that would be the outside date. Kornmann’s date (May 7) is in line with where it was set before, and with his outside date. June would put it near the primary date, and might be difficult for the SOS. July or August would work. You might have to consider that opponents may want to challenge signatures, etc. August would be pretty much out if you wanted to assure any lawsuit could be concluded, I would say the same with July, but I don’t know how fast the SD courts would work on such matters. May seems the best to me, and it seems Kornmann didn’t just draw that date out of his, um, hat. As someone who was a lobbyist and a political operative in his earlier life, it seems he knew what he was doing. He also knew that we went through all this in the 1980s, and came up with that conclusion.
Elizabeth asks what impact the Eighth Circuit’s ruling in SD Voice v. Noem II may have on the reproductive rights petition currently in circulation.
Elizabeth, my first answer, to circulators working right now to get signatures, is not to think about this ruling or the deadline—just keep collecting every signature you can every day! Don’t let up! (It’s kind of like when the teacher moves the exam date back a few days: the proper response is not to play Super Mario for a few days and wait until the new exam-eve to cram; keep studying, now and every day!)
But this ruling has a huge impact on the probability of getting this measure on the ballot. It is possible that, even with all circulators working their hardest right now, every day, this petition drive, like many before it, might still struggle to collect the necessary 35,017 signatures (and I know Dakotans for Health is aiming for 60K signatures to make sure there’s enough cushion to withstand errors and challenges) in the 12 months allotted by statute. Every extra day that this ruling gives petitioners to collect signatures increases the chances those petitioners have to get enough signatures. That’s totally good!
This ruling doesn’t just benefit ongoing, forward-thinking ballot question organizations like Dakotans for Health that get their petitions through the LRC/AG/SOS review process early enough to launch their petition drives on Day One, two years before the general election. This ruling also benefits other potential petition drives that may not even be on anyone’s radar. Consider Kristi Noem’s new communist push to control who can buy farmland in South Dakota (SB 185, currently awaiting Senate vote). One can certainly try referring SB 185, freezing it, and putting it to a vote next year. But maybe opponents don’t have time to organize a referendum campaign this spring. Maybe opponents need a few months to get a coalition together to oppose this measure. And maybe those opponents worry that if they refer SB 185, the Governor will just come back next Session or after the statewide vote to push a similar bill that would moot the referendum. Maybe opponents recognize they need a constitutional amendment to specify that neither the Governor nor any Executive Branch entity has the power to delay, review, or veto any sale of property between private parties. Those opponents could draft language and send it through the LRC/AG/SOS review process now, or in the next couple months, rally their coalition, and start collecting signatures on a petition at the fairs in August. Usually an amendment drive launching in August would have a hard time collecting enough signatures by the first week of November to qualify for the ballot. Yesterday’s ruling pushes that deadline back and gives opponents maybe six and perhaps as much as nine months more to complete their petition drive and put a “property rights over gubernatorial posturing” amendment on the 2024 ballot.
The whole point of a later deadline is to give citizens more time to respond to more issues in a timely fashion. The later deadline gives people a chance to say to voters, “Hey, do you want to vote on this issue this year? Then sign here!” Note, as I quote above, the Eighth Circuit endorses as common sense my argument that voters pay more attention during election years and that it is thus much easier to get people interested in signing and circulating petitions when they know what they are signing and circulating will put the issue to a vote in this year’s election.
Richard, the Legislature has to groupify its poop on this issue! They can’t just leave this vital process without a deadline, not when the next regular chance to fix the process comes after the current statutory deadline passes.
We don’t need the Legislature to include an emergency clause to enact the deadline before July 1. Under current statute, initiative petitions aren’t due until November 5. If the Legislature approves the hoghouse amendment of HB 1200 that I offer above, the new deadline of July 9, 2024, would become law in plenty of time to apply to the petitions that may come in after.
Way to go Cory! I’m typeless.
Obviously the position of the Noem Administration is that the Legislature needs a year to draft legislation in compliance with initiated measures because, as a body, it is very slow, cognitively, and cannot respond adequately during a session as its time and intellect is taken up by the necessity of disciplining members for discussing breast feeding, insuring that trans kids play basketball on a biologically determined team, and keeping sex offenders in the classroom.
This nonsense is all beyond the ken of most ordinary fellows. That is to say, most nobody cares.
Thank you, Cory
it is good to know that there are people in SD who still believe in the constitution and rights of individuals.
I most humbly would say that people of the ilk that asserts “no one cares” are are scraping the bottom of the fertilizer spreader for responses.
It is the courageous few that have the courage and fortitude to defend our democracy that are often receive brickbats and cowpies.
Keep it up.
Mr. Don, grudznick said:
Please do not misconstrue what I said, as you did.
You may call fellows “ilk” but you don’t get to put words into their mouths.
Again, Cory, thanks for what you do so well! The grudz’s of record, have little or no consequence when it comes to deep thought needed and seemingly – being so conservative- resist ALL sense of necessary change in society. Piloting the ship of state seems to take too much cognitive thought for so many of them….
Thank you Cory, for doing this! Well done!
The best comment I can make is : Ring The Tip Jar !!
Excellent work, Cory!!
Does Jackley only have 14 days from the date of ruling to petition Supreme Court? And if he doesn’t do that, can we truly, safely say that under this ruling, any Constitutional Amendment petitions for the next general ballot have until early May to submit voter signatures? I’m fuzzy on if Appeals actually enjoined enforcement of the 1-year deadline, because READING LAW IS HARD. I’ve also read your follow-up pieces, which fuzzed me more…
Good questions, Sharon!
Jackley appears to have 90 days to petition the Supreme Court to review this decision.
The Eighth Circuit itself did not enjoin enforcement of the one-year deadline; it let stand Judge Kornmann’s injunction but directed him to revise his order to remove his imposition of the new May deadline.
Whether or not Jackley petitions, it appears the injunction will stand and prevent enforcement of the November 5, 2023, deadline. It also appears that, while Judge Kornmann can’t set the deadline to any specific date, the Eighth Circuit has let stand his finding that deadlines earlier than six months before the election violate the First Amendment.
I feel fairly confident saying that, in this election cycle, at least, petitioners will have until at least May 6, 2024, to submit signed initiative petitions. Only the Legislature can establish a specific deadline, but this ruling prohibits the Legislature from setting a deadline earlier than six months before the election.
I’m completely speculating, but I would say that, unless the Legislature acts, we will default to a practical deadline of a few days before the SOS prints ballots in August… but hey, sponsors, that’s a huge guess! Don’t gamble on waiting that long! If you have initiatives in mind, write them up and start the process now!
Thank you Cory!
Bush, Bush II, and Trump .. good!
:)