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.