Senate Bill 139, which Governor Kristi Noem signed Tuesday, may disenfranchise tens of thousands of RV voters in South Dakota. But SB 139, which will become law on July 1, does not appear to impose any new restrictions on people who wish to circulate petitions for ballot questions.
I’ve been trying to figure out just what residency requirements people must satisfy to collect signatures for ballot question petitions. In 2020, the democracy-hating Republican Legislature passed Senate Bill 180 to tighten South Dakota’s residency requirement for circulators by requiring that they live in the state for at least 30 days before collecting signatures. The League of Women Voters challenged that 30-day requirement last year in court, and in January, the state agreed not to enforce that 30-day requirement, due to an adverse ruling in another lawsuit that enjoined every line of SB 180.
This year’s SB 139 applies a 30-day residency requirement to people registering to vote, but SB 139 does not mention petition circulators. The Legislature did not pass any bills addressing circulator residency, so theoretically, since Judge Lawrence Piersol’s ruling on 2020 SB 180 prevents enforcement of any of the petition circulation laws mentioned in that bill, including the circulator residency requirement, anyone can circulate a petition. Nebraskans or Minnesotans or maybe even Ukrainians or Mozambiquans larking through South Dakota for a weekend could collect signatures for a ballot measure.
Even if a court would find that the state can still enforce the pre-SB 180 assumption that circulators must be residents of South Dakota, SB 139 does not appear to re-impose the 30-day waiting period for new residents to circulate that the League of Women Voters challenged. Pre-SB 180, the law pointed to the definition of residency in SDCL 12-1-4. SB 139 does not put the 30-day waiting period into the definition of residency in SDCL 12-1-4. Under SB 139, newcomers are still residents the day they move here. SB 139 only says their residency has to last 30 days before they can register to vote. But no law says residents have to register to vote to circulate a petition.
So while I’m not ready to recommend that petition drivers put their ballot measures at risk by enlisting verifiable out-of-state residents to circulate petitions, the words in SB 139 and the words left out of SB 139 indicate that initiative and referendum sponsors may enlist newcomers to South Dakota to collect signatures on their very first day in South Dakota. So a cheer and a half for Governor Noem and the Legislature for protecting—or at least not messing with—the freedom of new South Dakotans to engage in civic life and exercise their cherished right of initiative and referendum.