Trumpist Big Liar Leah Anderson has only been on the job as Minnehaha County Auditor for a few weeks, and already she’s getting the county sued. Rick and Adam Weiland and their ballot question committee Dakotans for Health yesterday filed a lawsuit against Anderson and the Minnehaha County Commission in the United States District Court of South Dakota challenging Anderson and the county’s new policy restricting petition circulation and other First Amendment activities around the Minnehaha County Courthouse and Administrative Building:
The Minnehaha County Courthouse and Administration Building in Sioux Falls are popular locations for collecting signatures to place a measure on the ballot. County officials enacted new regulations on petition circulators last week, restricting them to two specific areas.
Dakotans for Health is currently gathering signatures for petitions focused on restoring abortion rights and eliminating the state sales tax on food. Initiated measures and referendums require about 17,500 signatures from registered voters, and initiated constitutional amendments require about 35,000 signatures.
“These new rules significantly impede our efforts,” said Rick Weiland, co-founder of Dakotans for Health. “What they have implemented is not only unconstitutional but also undermines direct democracy.”
The lawsuit contends the county’s policy restricts South Dakotans’ First Amendment rights by limiting the outdoor space available for political speech, with 99.3% of the previously accessible area now prohibited. It argues that the two rectangular areas established for petition circulators are inadequate.
Additionally, the lawsuit argues a requirement for all petition circulators and political speakers to pre-register infringes on the right to anonymous speech and exposes circulators and speakers to potential harassment [staff, “Ballot Question Group Sues Minnehaha County, Alleges New Policy Undermines First Amendment,” South Dakota Searchlight, 2023.05.10].
That 99.3% figure comes from my Google Maps estimate, which is cited in my own declaration filed with the court:
And in the big kaboom-a-boom, lawyering for the plaintiffs is Rapid City attorney James Leach, who has successfully litigated three lawsuits for Dakotans for Health and my own ballot question committee, SD Voice, to overturn four statewide restrictions on initiative, referendum, and the petition process in South Dakota:
- In May 2019, Leach helped SD Voice convince Judge Charles Kornmann that South Dakota cannot constitutionally restrict contributions to ballot question committees from people who don’t live in South Dakota as attempted in Republican-driven Initiated Measure 24.
- In SD Voice litigation that culminated in a final appeals ruling in February 2021, Leach convinced Judge Kornmann and the Eighth Circuit Court of Appeals that the state cannot force petition circulators to pre-register and wear state-issued ID badges as prescribed in 2019 House Bill 1094.
- In a Dakotans for Health lawsuit that culminated in an appeals ruling in November 2022, Leach convinced Judge Lawrence Piersol and the Eighth Circuit that the state’s attempt (2020 Senate Bill 180) to require only paid petition circulators to pre-register and wear badges was unconstitutional.
- In the SD Voice litigation against 2019 HB 1094, Leach also got Judge Kornmann and the Eighth Circuit Court of Appeals (final ruling February 2023) to restore six more months of initiative petition circulation time, as the courts found that the state’s requirement that petitions be submitted twelve months before the general election violated the First Amendment.
The brief filed by Leach for Dakotans for Health contends that Auditor Anderson and the county commission have made petitioning more difficult and dangerous for circulators and signers alike. Circulators have to shout from their isolated free-speech zones to catch the attention of most passersby, and shouting doesn’t make for inviting political conversation. The free speech zones are closer to the flow of vehicles in the Admin building parking lot and the street fronting the courthouse, creating more potential for disruption of traffic flow and risk to circulators and signers.
The plaintiffs do not argue that free speech is an absolute right, but as was established in all of the cases cited above and in numerous preceding First Amendment cases, the state has to have a really good, evidence-based reason for infringing on free speech. Auditor Anderson and the Minnehaha County Commission have not offered any such compelling reason:
Defendants’ own statements establish that they cannot meet the “narrowly tailored to serve a significant government interest” standard. Defendant Anderson’s May 2, 2023, memo to the Minnehaha County Commissioners cites a desire to “have better control over where these [First Amendment] activities can take place on our campus.” Declaration of Cory Heidelberger, Exhibit 1. But government has no legitimate interest in controlling political speech. The same memo cites an unspecific “vestibule area” and an unspecified “traffic flow problem,” but fails to explain how core political speech in a public forum, including sidewalks, has caused any “traffic flow problem,” let alone one so insurmountable that it could possibly justify the new prohibition. And the memo says that “county buildings must accommodate many people every day without any unnecessary delay or inconvenience,” but again fails to identify what “unnecessary delay or inconvenience” has occurred, or how it even theoretically could require such a drastic remedy as forbidding all political speech on all sidewalks and in virtually all public areas around both buildings [Dakotans for Health, brief, Dakotans for Health v. Anderson et al., filed 2023.05.10].
The brief goes on to argue that the new policy’s requirement that petition circulators come inside and ask the auditor’s permission to speak in one of the free-speech zones constitutes prior restraint, which also violates the First Amendment. The plaintiffs further contend that “allowing defendant Anderson to prohibit speech on a case-by-case basis” is too vague a policy, giving Anderson “unfettered discretion” to limit speech. Even if the county provided some standards, making circulators check in at the auditor’s office constitutes pre-registration akin to what the courts rejected in the suits against 2019 HB 1094 and 2020 SB 180.
You can read the full complaint, the brief with the specific legal arguments, and the declarations of Rick Weiland and me online. I’ll share the formal responses from Minnehaha County as soon as they are available.
I salute attorney Jim Leach and Rick and Adam Weiland for not appeasing the authoritarian fascists.
Two truisms from the history of 1920 to 1930. 1. Fascists steamroll appeasement with impunity. 2. Fascism stops with bloodshed.
SOUTH DAKOTA ACTIVISM UPDATE:
In the NYTimes this morning,
In South Dakota, organizers are optimistic that they can collect the signatures needed for an initiative next year. It is a compromise measure that would seek to reinstate the minimum access required by the Roe v. Wade decision. All abortions would be legal in the first trimester (roughly 12 weeks), and some would be in the second trimester.-NYT
In Florida, where Gov. Ron DeSantis recently signed a near-total ban, advocates are hoping to place an initiative on the ballot that would allow most abortions until 24 weeks. But the state’s pro-marijuana movement helps highlight the slowness of the effort: Organizers of a 2024 ballot initiative to legalize marijuana have already raised $30 million and collected nearly all the required signatures — while organizers of an abortion initiative are just getting started.
Arizona has tough rules for ballot initiatives, requiring hundreds of thousands of signatures on a petition. “That said, we think this fight is more than worth it,” said Ezra Levin, a founder of Indivisible, a progressive group that’s part of the effort. Levin explained that an initiative could both protect abortion access and generate enough Democratic turnout to help President Biden win an important swing state.
There appears to be less activity in several other states: Arkansas, Montana, Nebraska, North Dakota or Oklahoma. (In Montana, as in Ohio, court rulings have so far prevented bans from taking effect.)
In Oklahoma, activists submitted language for a petition last year, but withdrew it a few months later, saying they needed more preparation.
Go! Fight! Win!
You guys are the most humble heroes fighting fascists for people who may never thank you or even know how close they were to losing their rights. Thank you for protecting the peoples’ most precious weapons of freedom. I love it when you give the oppressors hell.
Thanks to Cory, Jim, Rick, Adam, and Dakotans For Health who are keeping democracy alive in South Dakota. These sorts of efforts to restrict petitioning are not new. Pennington County tried restricting access 3-4 decades ago, but backed off. Marshall Curtis, who was called the “Petition King,” simply refused to abide by the policy and they didn’t push it. I think they knew they would lose in court. I recall they modified their policy after they met resistance and took some constructive comments from the petitioners, so we didn’t have to bring a lawsuit. Still, Marshall didn’t follow it all the time, but they never interfered with him. Marshall was a fixture the the courthouse, and everyone knew him.
I knew this was going to happen, and I tried to warn one commissioner it was a bad idea brought by a person who had her own agenda agenda. Unfortunately, he ignored me, and now the Minnehaha County taxpayers governing with no foresight.