So if I already got the courts to say that any initiative petition deadline earlier than six months before the election violates the First Amendment, how does the state justify trying to enact a nine-month deadline?
Well, I’ve read the state’s briefs defending 2025 House Bill 1184 and participated in last Monday’s court hearing of the lawsuit Dakotans for Health has brought against the nine-month deadline, so believe me when I say, not very effectively.
I’m still rarin’ to rip up the testimony offered by the state’s two witnesses, especially the bald-faced bunk mouthed by the man who got us into this mess, democracy-hating Speaker Jon Hansen. But right now, I want to look at the core argument of the state’s case, the only really new argument they lodge that isn’t already directly destroyed by Judge Charles B. Kornmann’s 2021 ruling against the old 12-month deadline. That one new argument is the state’s newfound compelling interest in giving initiative opponents more time to challenge petitions in court.
The state’s May 12 response to Dakotans for Health’s April 1 complaint against HB 1184’s nine-month deadline says the state can justify taking away three more months of petition time (also known as suppressing core political speech) because “the state’s interest in preserving the integrity of the initiative process equals, and likely exceeds, Plaintiffs [sic] interests in compelling the citizens into often unwanted conversations” [Defendant’s Response, p. 20… and Wow! The state really wants you to share its belief that direct democracy and civic discourse are pain in the butt]. Moving the petition deadline back three months, from the first Tuesday in May to the first Tuesday in February, gives concerned citizens like Jon Hansen more time to investigate approved petitions, sue to reject them, and get a court ruling before the election, thus allowing voters “the benefit of knowing whether [initiatives are] validly on the ballot or not” [Defendant’s Response, p. 25].
This “compelling interest” argument has many flaws.
1. If this interest in “allowing adequate time for meaningful court challenges to potentially invalid petitions” [Defendant’s Response, p. 25] is so compelling, why did the state not mention it in defending the twelve-month deadline in court? How does a state duty so important that it overrides the First Amendment not occur the state’s top litigators led by then-Attorney General Jason Ravnsb—oh, well, perhaps I’ve answered my own question.
2. If the interest in investigating petitions for shenanigans is so compelling, why doesn’t the state do it? Rather than checking every signature on an initiative petition, the state only checks a tiny fraction of the signatures—a random sample of less than 4%. The state explicitly prohibits the Secretary of State from investigating signer or circulator residency or circulator misconduct that could invalidate petitions. Citizens suspecting petitioners of misconducting their way onto the ballot have to lawyer up, gather their own evidence, and make their own case to state court. They get no help from the Attorney General; the state limits the AG’s role in a petition challenge to defending the Secretary of State’s narrow signature verification process.
A “compelling interest” usually compels the state to do something. But the state doesn’t do much, if anything, when presented with evidence of invalid petitions for ballot questions or candidates. Instead, it has created a process that relies entirely on private entities, usually businesses or activist groups with money to hire lawyers and investigators and a political bias against a measure rather than a general interest in ballot integrity.
Imagine if, in response to its compelling interest in protecting life, liberty, and property, the state said, “If someone breaks into your house, socks you in the jaw, and steals your golf clubs, don’t call us. Call your lawyer, gather your own evidence, and file a lawsuit against the person you think robbed you.”
The state’s compelling interest in preventing crime compels it to hire police to catch bad guys and state’s attorneys to prosecute them. The state’s compelling interest in election integrity compels it to count every ballot and investigate the very rare instances of voter fraud.
A defense of HB 1184 appealing to a contrived “compelling interest” in “preserving the integrity of the initiative process” ignores the state’s practical and explicit shirking any substantive role in petition challenges.
3. A hard-fought petition challenge likely will not be settled before the election. Life Defense Fund, Hansen’s anti-abortion group that challenged last year’s Amendment G petition, filed its lawsuit in mid-June 2024. It eventually secured a two-week court trial scheduled for January 27 through February 7, 2025. Even if the petition deadline had been three months earlier, LDF’s trial would have ended right around election day, long after the state printed ballots, and the circuit court ruling would not have come down until days or weeks after the votes were counted. Appeals to the South Dakota Supreme Court would have taken many months more. HB 1184 takes away three months of election-year petition-circulation time—core political speech—without providing any prospect of a final ruling on a petition challenge before voters vote.
4. A petition challenge need not be settled before the election. Lawsuits can overturn voter-approved measures. Republicans proved that in 2016 when they sued to block voter-approved Initiated Measure 22, the Anti-Corruption Act, after the election. I proved that when I sued to overturn Initiated Measure 24, the ban on out-of-state contributions to ballot question committees. Governor-turned-ICE Queen Kristi Noem proved it again in 2020 when she pushed the post-election lawsuit that overturned Amendment A, marijuana legalization. Petition challengers already have all the time they need before and after the election to “preserve the integrity of the initiative process” by shooting down invalid petitions without further infringing on the First Amendment rights of petitioners.
5. The state appears less interested in the integrity of the initiative process and more interested in turning the court into a platform for anti-initiative propaganda. In his opening statement for the defense at last week’s hearing in Rapid City, Assistant Attorney General Grant Flynn said resolving a challenge before the election may be difficult, but what really matters is that HB 1184 makes the trial more likely to occur before the election. HB 1184 guarantees a “public hearing” at which petition challengers like Hansen can present their “relevant” evidence and air the “dirty laundry” of the petition process to inform the voters.
“Dirty laundry”—those are the state’s words. They don’t care if the voters get a final verdict, a judge’s careful weighing of all the evidence, questions of fact, and questions of law and their bearing on the validity of the petition. Through HB 1184, the state and Jon Hansen seek an opportunity to use the court for political publicity, to smear initiative sponsors.
Jon Hansen already has plenty of opportunity for publicity stunts to smear his opponents. He got Attorney General Marty Jackley to help him smear Dakotans for Health during its abortion rights petition drive in 2023 with a press release alleging that Hansen and Life Defense Fund had evidence of circulator shenanigans. That alleged evidence never resulted in criminal charges or convictions. Even Hansen and LDF declined to take that evidence to court: Judge John Pekas held the door open after the 2024 election for LDF to continue its action, prove its allegations of petition fraud, and thus subject Dakotans for Health boss Rick Weiland to legal penalties, but LDF moved to dismiss the case completely. That motion indicates that all LDF wants is to beat the initiatives it opposes, not pursue any ideal of ballot integrity.
These five reasons show that Speaker Hansen’s HB 1184 isn’t really about balancing any First Amendment rights with any compelling interest in initiative petition integrity. The February deadline is about whacking initiative backers on both ends, first by taking away the three most valuable months of circulation time they have, then by giving lawyers more opportunity to sandbag initiative campaigns with pre-election lawsuits.
HB 1184 suppresses First Amendment rights without fulfilling any countervailing compelling interest for the state. The state should feel more compelled to protect the First Amendment, respect the courts, and stop lawyer Jon Hansen from co-opting courtrooms for his political purposes.