Another important bill headed for conference committee is Senate Bill 113, in which the Legislature attempts to replace the unconstitutional 12-month deadline for initiative petitions that the Eighth Circuit struck down last month.
Alas, the House has erred by approving another unconstitutional deadline, the second Tuesday in March, eight months before the election.
After casting the deciding vote in favor of eight-month deadline in committee last week, Democratic Representative Erin Healy fixed her error yesterday by joining a unanimous Democratic caucus and two sensible Republicans (Mike Stevens and Jess Olson) in voting against SB 113 as amended. But that makes only 9 nays. I’ll be generous and say that instead of falling for Representative Jon Hansen’s weak legal flim-flam, House Republicans voted for SB 113 just to keep it alive for conference committee, where wiser legal minds will have a chance to amend it back to Representative Will Mortensen’s wise proposal to adopt the six-month deadline, first Tuesday in May, that the courts have said is the earliest possible constitutional deadline.
The conference committee has not been named yet, but members of the conference committee and of the House and Senate, let me repeat the one point you must understand about the federal courts’ ruling on our initiative petition deadlines: no petition deadline earlier than six months before the election will not survive judicial review.
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].
Judge Charles Kornmann says the deadline can be no earlier than six months before the deadline. The Eighth Circuit said the court cannot impose a new deadline, be it six months, four months, or three months, but the Eighth Circuit upheld the district court’s reasoning that six months is the maximum time allowable under the First Amendment and more than enough time for the state to review initiative petitions.
Leave SB 113 in its current form with an eight-month deadline, approve and send that eight-month deadline to the Governor, and it will fail in court. South Dakota will lose another costly lawsuit, and the petition process will be left in limbo with no clear enforceable statutory deadline.
Let’s just fix the problem now: amend SB 113 to set the deadline at the first Tuesday in May, the earliest date the courts have said is allowable.