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Judge Immediately Restrains Minnehaha County’s Anti-Petitioning Policy, Says Auditor Likely Violating First Amendment Rights

That didn’t take long. Just one day after Dakotans for Health filed its lawsuit challenging Minnehaha County’s radical new restrictions on petitioning and other First Amendment activities at the county courthouse and administration building, federal Judge Roberto Lange issued a temporary restraining order prohibiting the county from requiring petition circulators to check in with the auditor before collecting signatures or forcing circulators to stand in the tiny, isolated speech zones drawn up by free-speech-hating Auditor Leah Anderson:

Minnehaha County’s attempt to stifle petition activities around county buildings so patently violates the First Amendment and harms plaintiffs Dakotans for Health, a ballot question committee currently circulating initiative petitions for an abortion rights amendment and a food-tax repeal, that Judge Lange didn’t even wait for the county or the auditor to submit responses to the suit:

Defendants’ new policy preliminarily appears too broad in its restrictions of rights to free speech and to petition the government assured by the First Amendment as applied to state and in turn county government through the Fourteenth Amendment. Simply put, many of the provisions of Defendants’ new policy do not appear to be “narrowly tailored to serve a significant government interest.” Ward. 491 U.S. at 791. “Narrow tailoring is crucial where First Amendment activity is chilled—even if indirectly—'[b]ecause First Amendment freedoms need breathing space to survive.'” Ams. for Prosperitv Found, v. Bonta, 141 S. Ct. 2373, 2384 (2021) (quoting NAACP v. Button. 371 U.S. 415, 433 (1963)).

The underlying explanation in Anderson’s memorandum and the introductory three explanatory paragraphs in the LIMITED PUBLIC USE POLICY justify neither such a small geographic restriction on petition circulators or placement of that area away from the entry areas to the Minnehaha County buildings, nor the somewhat, vague provision mandating a “check-in at the Minnehaha County Auditor’s office prior to [petition circulation] … to permit the placement of security markers and to verify space availability.” Doc. 5-1 at 2. These provisions seem to do more to deter and frustrate petition circulating at Minnehaha County buildings than addressing “unnecessary disruptions or inconvenience” to county operations or to those visiting county buildings [Judge Roberto Lange, Dakotans for Health v. Leah Anderson et al.: Opinion and Temporary Restraining Order, U.S. District Court of South Dakota, Southern Division, 2023.05.11].

Judge Lange does not declare the entire policy unconstitutional. He finds constitutionally acceptable for now the portions of the policy advising citizens to exercise their First Amendment rights to behave themselves; to respect the rights of others and not obstruct foot or vehicle traffic; to not follow people into the building; to not leave their petitions, signs, chairs, and other materials on county grounds unattended; and to pause their free-speech activities if they step inside during severe weather. But those expectations were all covered not just by petition circulators’ own good business sense (you don’t get many signatures from harassing people and jumping in front of their cars) and the county’s previous and reasonable guidelines for petition gatherers:

Minnehaha County buildings, particularly the Administration Building, have traditionally been popular locations for citizens collecting signatures for ballot petitions. Minnehaha County appreciates those citizens who wish to take an active role in federal, state and local government decisions. County buildings are also public facilities that need to accommodate many people everyday without any unnecessary delay or inconvenience. Therefore the county has adopted guidelines for individuals gathering petitions on county property. All persons wishing to gather signatures for a ballot question on Minnehaha County property will abide by the following guidelines:

  1. Remain outside of county buildings and not obstruct individuals as they enter and exit the building.
  2. Conduct themselves in a polite, courteous and professional manner.
  3. In the case of severe weather, the Commission Administrative Officer may allow individuals collecting signatures to stand inside the Administration Building entry-way if they do not impede those entering and leaving the building [Minnehaha County, guidelines for petition gatherers, effective until adoption of new policy on 2023.05.02, published in Minnehaha County Commission Agenda Packet, 2023.05.02, p. 167].

Judge Lange says reverting to that previous policy will do “minimal” harm to the county and certainly no harm that outweighs the “immediate and irreparable harm” that Dakotans for Health will suffer from the county’s violation of its First Amendment rights.

Judge Lange’s temporary restraining order is in effect for no more than 14 days, with the expectation that the parties will cooperate in setting a preliminary injunction hearing as soon as possible. Petition circulators and other practitioners of the First Amendment thus may move freely (but courteously, please!) about the Minnehaha County government complex grounds with their petitions, signs, and other materials, exercising the First Amendment rights that Minnehaha County and Auditor Leah Anderson are trying to quash.


  1. Donald Pay 2023-05-12 08:58

    Well, that was quick!!! It’s nice to see tyranny slapped down pronto. This, of course, is just the first step, but let’s hope the second step is a prompt withdrawal of this policy and a good-faith effort between the officials and petition circulators to work out any problems that might occur. That might also include policies that protect petition circulators and signers from harassment, intimidation, threats and violence for engaging in First Amendment activity.

  2. John 2023-05-12 09:51

    Yes, it is grand seeing tyranny slapped down as it emerges from the gate.
    The hypocrisy of 5 county commissioners voting for tyranny, and the commission’s lawyer, to spin a frivolous defense of their indefensible act should be a millstone around their necks at their next elections. Acts like these are the epitome of wasteful spending and government over-reach.

  3. Nick Nemec 2023-05-12 11:30

    Next up some group opposed to a particular petion drive will find some plaintiff to file a lawsuit claiming “harassment” by petitioners. Actual evidence of harassment will be thin or nonexistent, the goal of the lawsuit will be intimidation of potential circulators to reduce their numbers and thereby reduce the likelihood of a successful petition drive.

  4. Mark Anderson 2023-05-12 12:25

    Now, Leah can tell it to the judge.

  5. P. Aitch 2023-05-12 13:05

    This is when having a diverse audience on Cory’s blog is valuable. Mike Zitterich and Mr. Mowry have clearly lost this battle and we can witness how they handle this defeat. Defeat often serves to give a clear tell on a person’s character.

  6. Donald Pay 2023-05-12 14:10

    Nick points out something that I never contemplated, because I never saw it happen. People who are circulating petitions don’t waste time getting all riled up about someone turning them down. That’s their right, just as it is others’ right to sign. Sometimes the opponents to the petition want to explain their position. I might listen for a short time, if there isn’t anyone else wanting to sign. It doesn’t hurt to listen to the opponents point of view, but I never engage with them, other than to say, “Well, hopefully you will have a chance to vote against this initiative.”

  7. Cory Allen Heidelberger Post author | 2023-05-12 17:18

    Donald is absolutely right: we circulators know better than to waste our time creating a ruckus. All we want are signatures. If people don’t want to talk to us, we stop our pitch and look for other more willing citizens.

  8. Cory Allen Heidelberger Post author | 2023-05-12 17:24

    Nick, right on. I suspect that the “disruption” and “inconvenience” Anderson claims is happening is really just a few of her anti-abortion allies (Anderson served on the board of Leslee Unruh’s Alpha Center, and during last year’s campaign, Anderson said she was still engaged in activism with them; Leslee Unruh is partners with Jon Hansen in the ballot question committee formed to oppose Dakotans for Health’s Roe-v-Wade rights petition) coming in crying about how much it bothers them that people are circulating and signing a petition that would let us vote on abortion rights. I’d love to see Anderson try coming forward with her evidence of any disruption caused by circulators. That evidence, of course, can’t be hearsay. She’ll have to get people to testify under oath that petitioners kept them from doing their business at the courthouse. Hmm… anybody not able to pay their taxes or get their license tags or register to vote due to petitioners blocking the doors? I don’t think so.

    Note to Leah and her fellow theocrats: the “inconvenience” you feel at seeing people working to reverse your authoritarianism is not legally actionable.

  9. Scott Ehrisman 2023-05-12 19:45

    Let’s also point out that when the commission approved this, there were 3 attorneys sitting on the dais with two of them as commissioners. You would expect at least one of the them if not all of them would have seen the obvious 1st Amendment violation and said something. Nope. Because authoritarians don’t care.

  10. Richard Schriever 2023-05-12 20:23

    Scott, a LLD (legal letters doctorate, or law degree) is the second easiest terminal degree to achieve, and I would assert, the easiest to engage in the practice of. I.E., those fancy letters do not necessarily correlate to a person with lot of ability to apply intellectual rigor. Rote memorization skills will get ‘er done.

  11. grudznick 2023-05-12 21:12

    Mr. E, we don’t see each other as much anymore, but I wanted you to know I still nominated you for the best coiffure in your group, as I usually do.

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