You know how the Legislature needs to act immediately to re-establish the deadline for submitting initiative petitions, thanks to my win at the Eighth Circuit Court of Appeals? Well, if House Local Government is paying attention and takes to hoghousing HB 1200 tomorrow morning, they have some other fixing to do of South Dakota’s Swiss-cheesed ballot question laws.
Back in November, the Eighth Circuit affirmed U.S. District Court Judge Lawrence Piersol’s 2021 ruling that 2020 Senate Bill 180 violated the First Amendment. That bill tried to reëstablish for paid petition circulators the registry and badges that got thrown out in my successful litigation against 2019 House Bill 1094. Ballot question committee Dakotans for Health enlisted Rapid City attorney Jim Leach to litigate SB 180, and as usual, the federal courts found Leach’s arguments about petitions and circulator rights persuasive.
Dakotans for Health focused its attack on SB 180’s circulator registry and badges, but Judge Piersol enjoined enforcement of the entire law, which rewrote a number of other statutes pertaining to initiative and referendum. The most significant other provision of SB 180 was its redefinition of “petition circulator” to require 30 days residency in South Dakota before circulating a ballot question petition. That redefinition went into SDCL 2-1-1.3, which the League of Women Voters challenged in federal court last June. The Eighth Circuit’s affirmation of the total injunction on SB 180 mooted the League’s lawsuit. The League and the state stipulated to the fact in January, allowing the League to claim victory over the residency requirement.
I thought that claim overreached. I thought blocking enforcement of SB 180’s 30-day residency requirement for circulators would make South Dakota law default back to its pre-SB 180 state, which restricted petition circulation to residents of South Dakota as defined by voting residency. Maybe South Dakota could no longer make a circulator from Minnesota sit in a motel room in Sioux Falls or an RV at Lake Herman for a month before collecting petition signatures, but surely a circulator had to at least rent a room and be eligible to vote in South Dakota before circulating a petition here.
But as I’ve learned from the Eighth Circuit’s ruling on petition deadlines, the court’s declaration that a standing law is unconstitutional does not automatically rewrite the law to the most recent form that passed constitutional muster. The court enjoins the state from enforcing that bad law, but that unenforceable law remains on the books. Judges don’t get to write a new version for the state and its citizens to follow.
Thus, thanks to the litigation Dakotans for Health won against SB 180, South Dakota has no residency requirement for petition circulators. People from Minnesota, Massachusetts, California, and anywhere else in the country (and perhaps the world!) can come to South Dakota and circulate petitions to put laws and amendments on the ballot.
That hole in the law should make Jon Hansen freak the frack out. Hansen hates out-of-state circulators. The Dell Rapids Republican legislator thinks out-of-state circulators (but not lobbyists) are all liberals trying to impose their agendae on South Dakota. Representative Hansen should be rushing into House Local Government tomorrow with a hoghouse amendment to repair this gaping hole wrought by the courts in South Dakota’s initiative and referendum laws before the pro-Roe petitioners on whom he is waging holy war hire out-of-state circulators to come collect 100,000 signatures for Dakotans for Health’s abortion-rights amendment.
Of course, the absence of a residency requirement does not stop the circulation of petitions. Initiative and referendum can proceed (and are proceeding!) just fine without any replacement for the SB 180 statutes that the state can no longer enforce.
That’s not the case with the missing deadlines for submitting initiative petitions. Sponsors of initiatives can’t plan their petition drives if they don’t know when the petitions are due. House Local Government needs to act immediately to put a bill in motion to establish new, Constitutional, enforceable deadlines for submitting those petitions so that sponsors, circulators, and voters know that their signatures will count and the measures that interest them will make the ballot… no matter where the people who collect their signatures come from.