After a summer of waffling, the Lawrence County Commission last month finally rectified its Constitutional error and acknowledged that the First Amendment allows citizens to circulate petitions freely outside their county government buildings. At its October 10 meeting, the commission approved a new “Political Activity Policy” explicitly allowing petitioners to collect signatures outside the Lawrence County courthouse and administrative building, not just in the poorly trafficked, poorly accessible courtyard between the two buildings. The new policy continues to prohibit petitioning inside the two county buildings. The new policy also restates the expectations under which all good circulators operate even without government directive:
- A circulator may approach persons for the purpose of politely asking for a petition signature;
- A circulator may engage in discussion, but shall not verbally or physically harass, threaten or intimidate any person for any reason;
- A circulator shall respect the right of a person to decline to sign a petition;
- A circulator may not follow a person into the Lawrence County Administrative Annex Building or the Lawrence County Courthouse for the purpose of obtaining a petition signature or engaging in discussion;
- A circulator shall not at any time prevent or interfere with ingress/egress of any person to or from a County building;
- A circulator may not block or hinder pedestrian flow to and from the entrance/exit doorways; and
- A circulator may not use any County equipment, supplies or services when gathering Signatures.
** Failure to abide by the terms of the above described Code of Conduct shall result in the circulator being asked to leave the County premises. Further, failure to abide by the terms of the Code of Conduct may result in removal and/or arrest by law enforcement.
Thank you for your cooperation [Lawrence County Commission, Political Activity Policy: Conduct of Petition Circulators, approved 2023.10.11].
Lawrence County is still on questionable First Amendment ground targeting petition circulators with restrictions. Restrictions on free speech have to be content-neutral; since this policy only applies to petition circulators, Lawrence County appears to be leaving the door open for petition blockers to crowd into the county buildings and talk to anyone they want about their opposition to whatever initiatives, referenda, or candidates the petitioners may be promoting. Circulators can’t follow people into the building to talk about their petitions, but if a blocker hears someone tell a circulator, “Hey, I gotta pay may taxes, but when I come back out, I’ll sign,” the county policy allows the blocker to follow that potential signer into the building saying, “Decline to sign! If you sign that petition, the Republic will fall and you’ll go to Hell!”
But rescinding the county’s attempt to ban petitioners from the front steps and sidewalks of the county campus is sufficient for ballot question committee Dakotans for Health, which sued Lawrence County in June to challenge the restrictions it tried to enforce on circulators of D4H’s Roe v. Wade and food-tax-repeal initiative petitions. Dakotans for Health won a quick restraining order from federal Judge Roberto Lange against the circulator restrictions and was ready to stop pressing its lawsuit when Lawrence County promised in July not to enforce the restrictions while it drafted a new policy. However, the county dilly-dallied and told the court in August that it planned to fight for its restrictions. Now notified of the new policy (two weeks after its passage), Dakotans for Health tells the court the suit is moot; it’s all over but the shouting about attorney’s fees:
Plaintiffs move pursuant to F. R. Civ. P 41(a)(2) to dismiss all issues in this case, except attorney fees and costs, as moot for lack of jurisdiction.
This case challenged defendants’ Political Activity Policy, which limited petition circulation to “the plaza area located between the Lawrence County Administrative Annex Building and the Lawrence County Courthouse.” Doc. 1-1. On October 10, 2023, defendants adopted a new Political Activity Policy that removes this restriction, so that they now allow petition circulation anywhere outside the Lawrence County Administrative Annex Building and Courthouse. Exhibit 1. On October 23, defendants notified plaintiffs of the new policy.
The new policy makes all issues in this lawsuit moot, except attorney fees and costs. Defendants have not agreed that plaintiffs are entitled to recover attorney fees and costs, or if so, the amount thereof. Plaintiffs will attempt to settle the issue with defendants, and if unsuccessful will file a motion [James D. Leach, attorney for Dakotans for Health, Plaintiffs’ Motion to Dismiss All Issues Without Prejudice—Except Attorney Fees and Costs—as Moot, Dakotans for Health v. Bob Ewing et al., Case 5-23-cv-05042-RAL, filed 2023.11.03].
The Brown County Commission, which just banned circulators from its buildings and from within ten feet of entrances, should take note: you don’t really need a policy targeting petition circulators; you just need to remind people to be civil and enforce existing laws on disorderly conduct.