I had the pleasure of spending Monday in federal court in Rapid City. I testified as an expert witness on circulating ballot question petitions on behalf of my friend Rick Weiland and his ballot question committee Dakotans for Health, which is suing the state of South Dakota over its new law, 2025 House Bill 1184, moving the deadline for submitting initiative petitions up from the first Tuesday in May to the first Tuesday in February.
Reporter Seth Tupper was in the courtroom all day, too. The South Dakota Searchlight editor-in-chief was the only journalist who saw fit to cover this important trial. Tupper’s coverage headlines the witness-stand grilling of gubernatorial candidate and HB 1184 sponsor Speaker Jon Hansen (R-25/Dell Rapids), about whose specious flim-flammery I’ll have much to say later.
But first I want to focus on the most important point of Monday’s hearing, a point that the astute Tupper does not mention, and a crucial point that the state has grossly misread and misportrayed in court in a desperate attempt to save Hansen’s ongoing effort to kill direct democracy from another judicial humiliation.
In 2019, I sued the state over its deadline for submitting initiative petitions, which at that time was and since just 2009 had been 12 months before the election. U.S. District Court Judge Charles Kornmann ruled that a 12-month deadline for submitting initiative petitions violates the First Amendment by restricting the core political speech of circulating petitions. Kornmann said the earliest deadline that would pass Constitutional muster was six months, as South Dakota used before 2006:
In order to remain proportional and account for the difficulties and speech restrictions that come with petition filing deadlines long before the election, the First Amendment requires a filing deadline no earlier than six months before the election. Thus, a ballot initiative petition filing deadline in May would be sufficient to pass Constitutional muster [emphasis mine; Judge Charles B. Kornmann, Memorandum Opinion and Order, SD Voice v. Noem, Case No. 19-CV-01017-CBK, United States District Court, District of South Dakota, Northern Division, 2021.08.30, p. 9].
Judge Kornmann applied this logic only to petitions for initiated laws; he said 12 months remained acceptable for petitions for initiated constitutional amendments. On appeal, the Eighth Circuit said no, the six-month maximum should apply to both kinds of initiatives.
The Eighth Circuit also took issue with the District Court’s order setting the initiative deadline at six months. Judge Kornmann had offered the following careful argument for ordering that the state observe a six-month petition deadline:
The State is certainly entitled to pick a deadline of its choosing, so long as that deadline is in line with the First Amendment. The State would not want the statute to remain in place without a deadline. Plaintiffs must also be granted the relief to which they are entitled. If one year before the general election is too remote in time, some date must still be fixed. If plaintiffs are to have relief and the state’s regulatory scheme is to function the Court must fashion a new deadline that represents the constitutional limit. That limit must be arbitrary to some extent, as all deadlines are, but it must also be tied to law and logic.
Prior to 2006 the State imposed a deadline of the first Tuesday in May of the year of the election at which the proposed measure is to receive a vote. That deadline was contained in SDCL 2-1-2 before it was repealed. But SDCL 2-1-2’s deadline stood from 1989 to 2006, when the deadline was moved one month earlier, to April. See S.D. Senate Bill 47 (enacted: March 1, 1989); S.D. Senate Bill 78 (enacted: February 15, 2006). These deadlines worked just fine.
‘”When a law is found unconstitutional, it is void from its inception and the prior law remains in effect.'” Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 644 N.W.2d 612, 618 (S.D. 2002) (quoting In re Certification of Questions (Knowles). 544 N.W.2d 183, 204 (S.D. 1996) (superseded by statute on other grounds)). Having already addressed why the First Amendment requires the State to hold a filing deadline no earlier than six months before the election, the deadline that was in effect from 1989 to 2006 must be reinstated. S.D. Senate Bill 78, enacted in 2006, which required a deadline seven months prior to the election is constitutionally inadequate. Thus, the deadline prior to S.D. Senate Bill 78, which was the first Tuesday in May during the year of the election, remains in effect.
…The Court expresses no opinion on whether some other circulation window may be set by the Legislature. The Court has held that the one-year circulation window that existed in SDCL 2-1-1.2’s regulatory scheme before the issuing of this opinion is constitutional. The Court also holds that a filing deadline of six months before the election at which the initiative would receive a vote is the constitutional limit for how remote a deadline may be set from the election [Kornmann, 2021.08.30, pp. 12–14].
Judge Kornmann didn’t want to step on Legislative authority, but he also didn’t want to leave South Dakota in the absurd petition of having no petition deadline. He carefully reviewed statute and ordered that the state default to the last Constitutionally adequate deadline on its books, the six-month deadline the Legislature enacted in 1989.
The Eighth Circuit said the district court lacked authority to save South Dakota from deadlineless absurdity by prescribing a new filing deadline. The Eighth Circuit said only the Legislature can enact a new deadline to replace the one Judge Kornmann enjoined.
But here’s the part the state and Speaker Hansen stubbornly miss: the Eighth Circuit did not question Judge Kornmann’s determination that the 12-month deadline, the preceding seven-month deadline, and any other deadline earlier than six months are all “constitutionally inadequate”. The Eighth Circuit affirmed the district court’s Constitutional framework; it only said that the Legislature had to pick the actual deadline it wanted within that framework.
Thus, while the Legislature is free to set an initiative petition deadline any time between the first Tuesday in May and the general election, the Legislature is not free to ignore the courts and the First Amendment.
The Senate understood this ruling and forced Representative Hansen to surrender to this logic and accept a May deadline in 2023. But with a new Senate shorter on legal wisdom and ass-kickery, Speaker Hansen this year was able to hornswaggle his House colleagues and just enough undersupervised Senate yahoos and the inattentive into revisiting the deadline and approving a nine-month deadline.
Reread SD Voice v. Noem: our 12-month deadline violated the First Amendment. Our seven-month deadline violated the First Amendment. Any deadline earlier than six months before the election, including the nine-month deadline in HB 1184, violates the First Amendment. The District Court said so. The Eighth Circuit never un-said so. The Legislature can and must set the actual deadline, and it can set the deadline in May (like Idaho, Illinois, and Missouri), June (like Montana, California, and Nevada), July (like Nebraska, North Dakota, and Arkansas), or August (like Colorado and Oklahoma). But the Legislature cannot constitutionally set that deadline in March or February or on Jon Hansen’s birthday on December 30. Any deadline earlier than six months before the deadline restricts irreplaceable springtime election-year political speech.
That point is really all that matters in the current lawsuit, Dakotans for Health v. Johnson. That’s really all Judge Camela C. Theeler needs to consider in deciding this case. Judge Theeler’s District of South Dakota colleague Judge Charles B. Kornmann ruled in SD Voice v. Noem, “The First Amendment requires a filing deadline no earlier than six months before the election.” The Eighth Circuit affirmed that ruling. Speaker Hansen’s HB 1184 sets the filing deadline at nine months before the election. HB 1184 violates the First Amendment and must be enjoined.
Such is the inevitable conclusion of a plain reading of SD Voice v. Noem. Speaker and lawyer Jon Hansen apparently isn’t big on reading.