Press "Enter" to skip to content

House Approves Unconstitutional 8-Month Initiative Petition Deadline; Conference Committee Must Save SD from Another Court Loss by Amending Deadline to May

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.


  1. e platypus onion 2023-03-07 08:23

    Face it, Democratic caucus needs to be renamed ‘carcass’ since the party is essentially dead in the Midwest.

  2. Donald Pay 2023-03-07 09:15

    Let’s say they pass what is an unconstitutional deadline. How fast would it be rejected by the courts? What sanctions against the State of South Dakota could be sought?

  3. All Mammal 2023-03-07 09:36

    Rep. Hanson said it takes him and several other lawyers 66 days to go through the petition signatures with a fine toothed comb looking for all the illegal deficiencies to invalidate our work. He will not accept what the people choose. He especially hates women’s freedom to choose. I’d throw down for a one-way ticket to send him to Iran where he belongs.

  4. Mark Anderson 2023-03-07 12:45

    To Hanson its six of one and half, well you know what I mean. It’s taxpayers money and he’s throwing it away. He’s singing in the rain. He must really like Bobby Sands and Northern Ireland with the 66 days business.

  5. Mark Anderson 2023-03-07 13:20

    By the way Cory, Florida is going after publishers like you. Even Newt thinks it’s insane. I know it’s off topic but are you following this mess? With DeSantis every day is a new manufactured culture war thingy. However, it does spread to other states.

  6. Bill Means 2023-03-07 23:34

    The 1868 Treaty a valid legal document as outlined in Article Six of the US Constitution. This Treaty states that the Eastern boundary of the Great Sioux Nation is the East Bank of the Missouri River so, before States and Corporate America start building Piplines to steal this water they better consult with the rightful owners. First, States and the Feds allow unregulated extractive industries and agriculture to pollute the water all over the country then you want to steal the people’s water. When does it end? The US can no longer hide behind its Colonial history. As a peaceful man once said, “I may be an army of only one but the truth is still the truth” We are here for the long struggle to remain as Lakota
    Mini Wiconi, Water is life

  7. Cory Allen Heidelberger Post author | 2023-03-08 04:49

    Donald, I don’t know that we could seek any new sanctions against the state beyond what the state suffered in the three previous lawsuits it has lost over initiative and referendum restrictions: injunction of the unconstitutional laws and payment of the victorious plaintiffs’ legal bills.

    It would be nice if the court could impose a sanction that might prevent the Legislature from making similar errors in the future: removing Jon Hansen and his ilk from the Legislature. But we have t leace that remedy to the voters.

Leave a Reply

Your email address will not be published.