In Colorado the circulation period was six months, and the filing deadline was three months before the election. South Dakota’s circulation period is one year. In order to remain proportional and account for the difficulties and speech restrictions that come with petition filing deadlines long before the election, the First Amendment requires a filing deadline no earlier than six months before the election. Thus, a ballot initiative petition filing deadline in May would be sufficient to pass Constitutional muster [Judge Charles Kornmann, Memorandum Order and Opinion, SD Voice and Cory Heidelberger vs. Kristi Noem, Jason Ravnsborg, and Steve Barnett, United States District Court of South Dakota, Northern Division, 2021.08.31, p. 9].
In August 2021, U.S. District Judge Charles Kornmann told the South Dakota Legislature that it can’t set the deadline for submitting initiative petitions any earlier than six months before the general election—i.e., the first week of May—and ordered that South Dakota revert its deadline for initiated laws back to the First Tuesday in May, as the law provided before 2006. Last month, the Eighth Circuit Court of Appeals told the Legislature that Judge Kornmann himself couldn’t set a new deadline to replace South Dakota’s unconstitutional one-year initiative deadline—only the Legislature can set an actual date—but affirmed Judge Kornmann’s constitutional arguments and applied them equally to petitions for initiated laws and initiated amendments.
So how does House State Affairs respond? By ignoring the court’s crucial guidance and proposing another unconstitutionally early initiative petition deadline, the second Tuesday in March.
In House State Affairs Wednesday, Representative Will Mortenson (R-24/Pierre) offered a hoghouse amendment to Senate Bill 113 that would have set the initiative petition deadline to the earliest Constitutionally allowable date, the first Tuesday in May. Speaking to his amendment in committee, Mortenson correctly said the court had left the state with no effective deadline and that the early-May this deadline “was some of the guidance given by the District Court. I believe that this will be upheld be a subsequent court as a viable deadline under the framework they have proposed.” The committee supported that amendment on a voice vote (with no audible nays—hear SDPB audio timestamp 2:00:22).
Representative Jon Hansen then proposed his own hoghouse amendment to set the initiative deadline at the second Tuesday in March. Lawyer Hansen, who testified for the losing side in the lawsuit that mooted the 12-month deadline, incorrectly represented the Eighth Circuit’s ruling as saying that Judge Kornmann “doesn’t have the authority to say” that a deadline earlier than six months is unconstitutional. Hansen presented a timeframe, which he included in the “findings” of his amendment, for the administrative and legal functions for which he says petition deadlines must account. Ignoring the fact that the Secretary of State’s office is able to address all of those functions with referendum petitions submitted at the end of June, and ignoring the testimony he heard in court from the Secretary of State’s office that the Secretary of State was always able to fulfill all necessary functions by the May deadline back before 2006, Hansen portrayed his second-Tuesday-in-March deadline as still providing too short a time but “minimally sufficient [to] be upheld”. Hansen suggested that he could bring the Attorney General and Secretary of State to conference committee to explain that six months is too little time but that eight months could just barely get the job done.
Mortenson asked the committee to resist Hansen’s amendment. He said Hansen raised “a proper discussion” and “is right on a lot of what he says”; however, Mortenson said that at this late point in Session, the Legislature needs to pick the clearly Constitutionally safe May deadline and pursue further discussion later.
Hansen responded that it’s important to adopt his March deadline now because it will affect ballot measures this cycle. He said picking the May deadline is “tak[ing] the easy route” and “not doing our best work.”
On a roll call vote, the committee adopted Hansen’s amendment 7–6. Six ayes came from Republicans: Hansen, Bartels, Reimer, Blare, Wangsness, and Drury. The seventh aye came from Democrat Erin Healy. Had Healy voted with her Democratic Minority Leader Oren Lesmeister, Hansen’s March deadline would have failed, and SB 113 would have remained at Mortenson’s minimally Constitutionally compliant May deadline.
Likely recognizing that the real discussion would happen in conference committee, where his colleague and Senate king Lee Schoenbeck would lay down the law, Mortenson magnanimously moved “do pass” SB 113 with Hansen’s pigheaded and slimly approved March deadline. Evidently not wanting to engage in further discussion of the complicated details of petition law and the Constitutional principles on which the state has lost multiple lawsuits concerning restrictions on ballot measures, the committee voted unanimously and without further discussion to send SB 113 as amended to the House floor.
House State Affairs placed SB 113 on the House consent calendar, raising the possibility of allowing Hansen’s unconstitutional and doomed March deadline to slip through the House without debate. Moving this bill through the House without full debate would be reckless. Sure, the House has a busy day Monday, with 19 Senate bills already waiting for debate on the last day for bills to make it through their second chamber. But the House should make SB 113 its 20th debate-calendar item Monday, undo the Hansen amendment, restore the Mortenson amendment, and make clear to the Senate and the people that the House recognizes the standing precedent established by the federal courts. Hansen and the Attorney General made their argument for an earlier deadline in court over three years ago, and their argument. The courts (not just one judge in Aberdeen, but the Eighth Circuit Court of Appeals) have said the initiative petition deadline can be no earlier than six months before the election. Mortenson’s deadline of the first Tuesday in May just barely complies with that court ruling. Considering any earlier date is foolish, as it invites costly relitigation of a case the state has already lost.