When I received the Eighth Circuit’s solid affirmation of my challenge to South Dakota’s unconstitutionally early 12-month deadline for submitting initiative petitions, I considered teasing Senator Jim Bolin and other Republican constitutionalist poseurs about how I had just changed their beloved state constitution with the stroke of a legal pen (well, that, and four years of federal litigation). After all, the 12-month deadline for filing initiative petitions to put constitutional amendments to a vote appears not only in statute but also in Article 23 Section 1 of the South Dakota Constitution:
Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately [emphasis of deadline added; South Dakota Constitution, Article 23 Section1, last amended 2018.11.06].
The constitutionalization of that deadline is part of why District Court Judge Charles Kornmann declined to overturn the 12-month deadline for amendment petitions. But with its declaration that the 12-month deadline for any initiative petition, statutory or amendatory (amendmental? amendacious?), violates the First Amendment, the Eighth Circuit appeared to say that the state may no longer enforce that clause of Article 23 Section 1. The offending language remains on the books, but Friday’s ruling that a 12-month deadline is unconstitutional and unenforceable changes the practical effect of the state constitution on the petition process.
We note Article 23, Section 1 of the South Dakota Constitution requires the text of the proposed constitutional amendment and the names and addresses of its sponsors to be submitted a year before the general election. It is silent as to the deadline for petition signatures [Judge L. Steven Grasz, Eighth Circuit Court of Appeals, SD Voice v. Noem II, opinion, 2023.02.17, p. 15, footnote 5].
Far be it from me to argue with the conservative appellate court judges that just gave South Dakotans their biggest win against the Republican war on initiative and referendum in the last 20 years. But the Eighth Circuit offers a novel reading of the sentence I bold above in the middle of Article 23 Section 1. Everyone with whom I have ever discussed the petition process has read that clause to mean “the petition with all the necessary voter signatures”. The preceding clause of Article 23 Section 1 does refer to those signatures, but the deadline clause does not. The Eighth Circuit is saying that we have been reading words into the deadline clause that are not there. Article 23 Section 1 doesn’t say when we have to submit our signed petition. Article 23 Section 1 says when we have to submit the petition as it is to be circulated, with the text of the proposed amendment that we will show people when we ask for their signatures.
This quizzical footnote isn’t just saying, “No, Cory didn’t just change the state constitution.” The Eighth Circuit’s novel reading of Article 23 Section 1 also seems to be forging a new, never-before observed deadline in the initiated amendment process. While the Eighth Circuit has declined to tell us and has declined to let the Honorable Judge Kornmann tell us when we have to submit our signed petitions with the mandate of at least 35,017 registered voters to put an initiated amendment on the ballot but has let stand Judge Kornmann’s finding that twelve months before the election is too darned early for that final deadline, the Eighth Circuit is saying that if we citizens propose an amendment, then before we go get signatures, we have to file our final proposed language on a petition form with the Secretary of State no later than 12 months before the election.
Now South Dakota has created a whole bunch of delays in the initiative process that the Eighth Circuit’s ruling does not touch. Sponsors have to submit the first draft of their initiatives to the Legislative Research Council, which gets up to 15 business days to review and comment on the proposed language. Sponsors then submit their initiatives with any revisions to the Attorney General, who gets up to 60 days to draft a title and explanation, 10 more days to take public comment on that title and explanation, and 10 more days to publish a final title and explanation. Only after the completion of that lengthy review can sponsors file their final initiative language with the Secretary of State in the form of a petition to be circulated.
So to ensure that the final language of a initiated amendment can be filed with the Secretary of State no later than twelve months before the general election, sponsors of amendments will have to get their ideas for amendments to the LRC at least 100 days before that early November deadline.
Practically speaking, if you want to amend South Dakota’s constitution and put that amendment to a vote at the November 5, 2024, general election, you need to file the final form of your petition as it is to be circulated with the Secretary of State by Monday, November 6, 2023. To ensure that your initiated amendment gets through the LRC/AG review process in time to meet that deadline, you need to submit your initial amendment draft to the LRC by July 28, 2023.
Whew—I’m reading a lot in this one footnote. But this footnote says something I’ve never heard said.
This footnote indicates that the Eighth Circuit and my successful lawsuit have not thrown the state constitution in peril of spontaneous mob combustion. Constitutional amendments can’t pop up out of nowhere during an election year and suddenly change our founding document. The Eighth Circuit says that our state constitution says that we must file the official language of the amendment—not the tens of thousands signatures calling for the vote on that amendment, but just the text of the amendment—at least one year before the election. The statutory folderol festooned upon the process means that sponsors must come up with their ideas for amendments at least one year, three months, and several extra days before the election. Before any initiated amendment comes to a public vote, the voters will have at least 15 months to read the text and think about whether they want to back it or beat it.
So relax, Senator Bolin. I didn’t just change the South Dakota Constitution. But much to my surprise, I did help the Eighth Circuit discover a whole new deadline in our petition process.