When the Eighth Circuit overturned South Dakota’s unconstitutional twelve-month deadline for initiative petitions in February, the Legislature acted quickly to fill that legal gap by hoghousing Senate Bill 113 and adopting the earliest Constitutionally allowable deadline of six months. Good job, legislators!
However, the Legislature appears to have failed to fill the much larger gaps in election law created last November when the Eighth Circuit affirmed that the state could not enforce its circulator badging and registry scheme and a host of other laws related to initiative and referendum.
The enjoined law in question, 2020 Senate Bill 180, rewrote several sections of ballot question petition law. Among other things, 2020 SB 180 rewrote SDCL 2-1-1.3 to define “petition circulator” as an adult who has resided in South Dakota for at least 30 days. In January, the state agreed with the plaintiffs who sued over 2020 SB 180 that it cannot and will not enforce that residency requirement.
But the Legislature did not put any new residency requirement in place, at least not in SDCL 2-1-1.3. None of the bills passed this Session rewrote SDCL 2-1-1.3. The 2023 Legislature did pass Senate Bill 139, which rewrites SDCL 12-4-1 to say that one must reside in South Dakota for at least 30 days before registering to vote, but one does not have to be a registered voter to circulate a petition. SDCL 2-1-10 still makes it a Class 1 misdemeanor to falsely attest to one’s South Dakota residency in the circulator’s oath on a petition, but that oath does not define residency or prescribe a minimum time that one must reside in South Dakota to circulate a petition.
Petition sponsors thus face a daunting question. South Dakota law does not make clear who can circulate a ballot question petition. There are lots of out-of-state paid circulators who would gladly come to South Dakota to make several dollars collecting signatures for ballot measure petitions. The state’s own stipulation says the state will not enforce any residency requirement for circulators. With no enforceable law on the books, it would seem we are back to the situation where a contractor or an interested ex-pat can fly into Sioux Falls, rent a room, and instantly be able to circulate petitions. So do sponsors dare employ out-of-state circulators?
I don’t have a solid answer… and I may not be able to provide a solid answer until some hardy sponsor submits a petition with signatures collected by a circulator who resided in South Dakota for just a few weeks and the Secretary of State either accepts that circulator’s signatures or tosses them a triggers another court case to secure more judicial clarification.
South Dakota laws or at least the previous laws made it easier to claim residency and vote than to circulate petitions. An interesting paradox to say the least.
I was always under the impression that you had to be a registered voter to circulate an initiative or referendum petition. If that is true, voting residency would be the requirement.
Hey I’ll be back this summer, will I get Soros money to circulate?
This circulator residency requirement never existed in the 1980s and 1990s, nor, I believe in South Dakota history until the legislature’s monkeywrenching in the 2000s. What I remember is the requirement was to be a registered voter, so whatever that meant in terms of residency was what was done. If the court voided the monkeywrench deadline, legally it doesn’t exist. Because our initiatives never had any trouble finding volunteer grassoots South Dakotans to circulate petitions, we never even thought about importing circulators, so the issue never came up. I would argue against imported circulators. If you can’t get real South Dakotans to volunteer to circulate, you shouldn’t be doing an initiative.
I think the Legislature wants to insure that the Right to Life people can brig in fresh troops from out state to circulate whatever petition they are pushing. Not that they need a hand on the scale, but we can’t be too supportive of that movement.