Democracy isn’t dead yet. In a significant victory for South Dakotans’ right to make their own laws, U.S. District Judge Camela C. Theeler ruled that 2025 House Bill 1184, which moved the deadline for submitting initiative petitions from the first Tuesday in May to the first Tuesday in February, violates the First Amendment.
This judicial ruling should not surprise anyone. When U.S. District Court Judge Charles Kornmann overturned South Dakota’s 12-month deadline for initiative petitions in 2021, he said that “the First Amendment requires a filing deadline no earlier than six months before the election.” When the state lost its appeal of that ruling at the Eighth Circuit in 2023, the then-sensible Senate rejected Rep. Jon Hansen’s (R-25/Dell Rapids) attempt to ignore Judge Kornmann with a March deadline and instead put the May deadline back into law. When Speaker Jon Hansen included a February deadline in the Republican Legislature’s war on initiatives in the 2025 Session, he knew he was cruising for lawsuit.
And now, just as he did twice before with unconstitutional bills (2019 HB 1094 and 2020 SB 180) to make petition drives unworkable with circulator registries and badges, Hansen has delivered the state into a costly and embarrassing courtroom defeat at the hands of supporters of direct democracy and their formidable advocate, Rapid City attorney Jim Leach.
The state won just one point before Judge Theeler. Plaintiff ballot question committee Dakotans for Health and their founder Rick Weiland argued that the court should have barred the state from arguing the nine-month deadline because the state already lost the deadline argument before Judge Kornmann and the Eighth Circuit in SD Voice v. Noem. Judge Theeler said the plaintiffs’ contention (the legal term is offensive collateral estoppel) would only apply if the issues in this case and the earlier case were identical. While Judge Kornmann said in 2021 that a six-month deadline is the constitutional limit, Judge Theeler said “the question litigated and decided concerned whether the one-year deadline in SDCL §§2-1-1.1 and -1.2 violates the First Amendment.”
Judge Theeler thus allowed the state to make its arguments and to lose every one.
The state tried to argue that Dakotans for Health lacked standing to challenge the February deadline because the February filing deadline does not violate the First Amendment and thus causes no injury that would give Dakotans for Health grounds to sue. Judge Theeler rejected that circularity and cited my testimony as an expert witness:
The State conflates standing with the merits. See Pratt v. Helms, 73 F.4th 592, 594 (8th Cir. 2023) (noting that “it is important not to conflate Article III’s requirement of injury in fact with whether a plaintiff has stated a cause of action because the concepts are not coextensive”). The question for standing is not whether the filing deadline violates the First Amendment; the question is whether Dakotans for Health can litigate that issue.
Dakotans for Health presented evidence through Heidelberger’s detailed testimony to support that the three-month change in the deadline created by HB 1184 negatively impacts Dakotans for Health’s ability to organize a petition drive and obtain signatures for a measure to be placed on a ballot. In fact, the State acknowledges that this type of petition circulation is core political speech protected by the First Amendment, see Docket 25 at 17–18; therefore, the Court finds incredulous the State’s argument that Dakotans for Health lacks standing to litigate whether a nine-month deadline unconstitutionally restricts this core political speech.
In any event, Dakotans for Health has established that it faces a concrete, particularized, and actual injury from the filing deadlines created by HB 1184. See, e.g., SD Voice IV, 60 F.4th at 1078–79 (considering similar detrimental effects of a filing deadline on First Amendment protections). Dakotans for Health has also shown that the injury is redressable through injunctive relief. Therefore, the Court concludes that Dakotans for Health has standing [Judge Camela C. Theeler, Order Granting Permanent Injunction, Dakotans for Health v. Monae Johnson, #4:25-cv-04050-CCT, 2025.08.29, p. 5].
The state contended that it needed to take away three months of petition-circulation time to give initiative opponents time to challenge petitions in court before the election. The state pointed to Hansen’s own failure to mount a successful challenge against Dakotans for Health’s restore-Roe initiative petition in the six months between the petition’s submission in May and the election in November. Judge Theeler bought none of that:
The Court is not persuaded that the State has tied HB 1184’s nine- month deadline to the State’s regulatory interest in protecting the integrity and reliability of the initiative process. See SD Voice IV, 60 F.4th at 1080–81 (noting the State’s paramount interest in protecting the integrity of its initiative process). While the Legislature ultimately agreed to change the filing deadline to nine months, the impetus of HB 1184 was Speaker Hansen’s inability to have a trial on the challenge to Amendment G prior to the election. But Speaker Hansen was acting as an interested person on behalf of Life Defense Fund in that litigation, not as a government actor. Indeed, the Legislature has given the right to institute such a lawsuit only to citizens, not the State. See SDCL § 2-1-18.
However, even if this Court were to agree that the State has a regulatory interest allowing citizens more time to litigate petition challenges prior to an election, the State has not shown that a nine-month filing deadline satisfies that interest. The nine-month deadline simply allows for three more months of litigation that may or may not result in a final resolution before an election. The State acknowledges as much. See Docket 25 at 23 (noting that the ability to bring a petition challenge earlier “would have potentially allowed the trial in the Amendment G matter to occur in October, prior to the election, rather than January, after the election” (emphasis added)). Moreover, even if a trial would have occurred on Amendment G before the election, that does not mean the case would have reached a final resolution—appeal and all—before the election. In fact, the appellate court may decline to consider the issue until after the election. See State ex rel. Cranmer v. Thorson, 68 N.W. 202 (S.D. 1896) (declining to decide pre-election challenge until after the election).
Setting aside that a nine-month deadline is not likely to result in final litigation of a citizen petition challenge prior to an election, the Court notes the absence of legislation requiring that such cases proceed on an expedited basis. The Court also considers that the State’s legitimate interest in election integrity is protected in part by the ability to bring post-election challenges. See Gooder v. Rudd, 160 N.W. 808 (S.D. 1916); Barnhart v. Herseth, 222 N.W.2d 131 (S.D. 1974); Bienert v. Yankton Sch. Dist., 507 N.W.2d 88 (S.D. 1993); Thom v. Barnett, 967 N.W.2d 261 (S.D. 2021). Ultimately, however, the State has failed show that the nine-month deadline created by HB 1184 furthers an important regulatory interest. Therefore, nine-month filing deadline in SDCL §§ 2-1-1.1 and -1.2 is unconstitutional under the First Amendment [Theeler, 2025.08.29, pp. 14–15].
With First Amendment harms staring us all in the face, Judge Theeler ruled that taking away three months of election-year petition-circulation time does “irreparable harm” to Dakotans for Health that “outweighs any potential injury to the State” that might accrue from enjoining HB 1184’s nine-month deadline. To serve the public interest by protecting First Amendment rights, Judge Theeler thus permanently enjoined Secretary of State Monae Johnson “from carrying out, implementing, and enforcing the provisions of South Dakota House Bill 1184, in any manner whatsoever….”
The state has one month to appeal to the Eighth Circuit. Absent an appeal, it would appear that Dakotans for Health and Rick Weiland (to whom every lover of democracy should be sending thank-you cards for taking up such difficult court challenges) and anyone else who wants to launch a statewide initiative has three more months to circulate petitions, until the first Tuesday in May. But there was some doubt last time the court threw out a petition deadline about whether we really defaulted back to the last constitutionally acceptable deadline.
If we need to clean up the lawbooks, the Legislature just happens to have a Special Session planned for September 23. They’ve been called by the Governor to debate replacing the penitentiary with a new prison, and Article 4 Section 3 of the state constitution says the prison is all they can talk about, but while they have a quorum, legislators could circulate their own petition, muster two-thirds majority in each chamber, and call for a second Special Session right after the prison debate to clarify the initiative petition deadline issue. Reëstablishing the May deadline in statute—or setting the deadline even later, like the second Tuesday in July—would bring welcome clarity to South Dakota’s proud tradition of direct democracy.
But legislators, whatever you do with the petition deadline and the rest of the initiative process, don’t listen to Speaker Jon Hansen. If you take his advice, you’ll probably just land the state in court again… and lose.
If the result of legislation passed by a democratically elected legislature is continually challenged in court one could legitimately ask if we have a democratic form of
government or if we live under a form of judicial tyranny.
Some may disagree but I think it’s a fair question.
I’m glad you are posting again, Cory. A certain amount of mental
stimulation is generally a good thing.
A democratic legislature has the authority to pass laws, yes—but only within the bounds of the Constitution. When courts strike down legislation, they’re not negating democracy; they’re enforcing the rules of the democratic game.
Yes, yes; and the bounds of the constitution are what all the arguments are about,
and what keep the courts busy.
When it comes to deadlines, the Legislature has been lengthening their own deadlines regarding legislative sessions. The main run of the Legislature used to end in late February or the first couple days of March. Now they do four days per week, which means they load days halfway through March. They also used to do a couple Saturday sessions so citizens who worked weekdays could come to Pierre to testify at committee meetings or meet with their legislators.
Another thing they do is waste time with caucus, where they get told how to vote by leadership. Instead, they could schedule session or a nonpartisan work period, where they listen to citizens.
I was going to say something about wasting evenings with a lot of social events, but people do need some relaxation, and most of those, while looking bad, are pretty harmless,
It would be a public service if the Legislature would fix their own issues rather than trying to “fix” the initiative process.
great column, Cory–welcome back!
Well done!
Luckily, South Dakotans created a constitution that enhances their power as voters to directly check the excesses and omissions of the Legislative branch.
Donald aptly points out how the Legislature affords itself conveniences and privileges that it tries to take away from citizens’ exercise of their own Legislative power.
I would like to see some candidate for Governor run on a platform that includes affording citizens the same privileges that legislators get when crafting, advocating, and voting on legislation. I will work up that plan and publish it eventually for any candidate willing to campaign on preserving and promoting direct democracy rather than stifling it.
Again, Rick Weiland is an unsung hero of democracy in this state. HIs initiative to restore abortion rights failed last year, largely because none of the big organizations who say they are defending women’s rights would step up and help Rick do it. He has filed and won two important lawsuits repealing Jon Hansen’s efforts to hamstring the ballot question process, with no other pro-democracy groups singing on as co-plaintiffs. (League of Women Voters did file a lawsuit against 2020 SB 180 to challenge the residency requirement for circulators, but Rick’s victory in his lawsuit against that bill’s paid-circulator registry mostly mooted that case, and LWV didn’t have to take their challenge all the way to trial and appeals.)
After Rounds beat Weiland in the 2014 Senate election, Rick could have just packed up his political bag and focused on the restaurant business. Instead, he has worked consistently for over ten years to use and defend the initiative process, an area that many other powerful groups in the state either ignore or actively oppose. Rick is doing good work for South Dakota.
I am embarrassed that some of the main legislators behind these efforts to defeat democracy are LAWYERS! Jon Hansen and John Hughes have both been fortunate enough to receive a legal education and the privilege of a law license. Yet Hansen tries to minimize the time for citizen initiatives and Hughes wants to require a supermajority before they’re adopted. Shameful.
Indeed, Nancy—Hansen’s law degree appears to have instilled in him neither dedication to the voice of the people nor understanding of the Constitution that protects that voice. Where did USD Law go wrong with him?
Years ago my grandfather had been sued on a mining deal gone bad. On cross-exam i the plaintiff’s lawyer implied my grandfather’s profession was dishonest by asking my grandfather,: “Sir you are a promoter, isn’t that true?” My grandfather paused and then responded, “Well sir, there are some lawyers and there are some lawyers,” countering with the implication that not all lawyers are honest or competent. Apparently the lawyer said “No more questions” and sat down. Likewise, the mere fact that Hansen is a lawyer certainly doesn’t imply competence or integrity.
Mr. Rick Weiland is a SD gem. Well done, sir.
Thanks out to Rick and Cory.