The state refuses to accept Judge Camela C. Theeler’s ruling that Speaker Jon Hansen once again disregarded the First Amendment when he pushed the initiative petition deadline back from May to February with 2025 House Bill 1184. But even as their appeal to the Eighth Circuit brews, the state at least acknowledges that, when they lose, they’ll have to pay Rick Weiland and Dakotans for Health $74K plus interest for their expenses in defending your Constitutional rights:
The state of South Dakota could be forced to pay at least $74,000 in attorney fees and costs for a group that’s suing to protect a longer circulation period for ballot-question petitions.
The two parties reached a settlement on attorney fees and costs last week. The agreement says the state will pay $74,000, plus interest at a rate of 3.64%, if the Dakotans for Health ballot question committee remains the winner of the lawsuit.
The state is appealing a federal judge’s September order. The order prohibits the state from enforcing a new law that moves the election-year filing deadline for ballot-question petitions from May to February. That would shrink the circulation window by three months and, according to the judge, violate petitioners’ First Amendment rights [Seth Tupper, “State on the Hook for at Least $74,000 If It Loses Appeal in Petition Deadline Case,” South Dakota Searchlight, 2025.10.06].
The last time the state pressed the Republican war on ballot questions to appeal, the Eighth Circuit didn’t rule until nearly 18 months after the district court ruling. Judge Theeler enjoined enforcement of the unconstitutional February deadline on August 29, so we shouldn’t expect to hear from the Eighth Circuit until February 2027, meaning Dakotans for Health can safely assume it can collect signatures on its two current initiative petitions (and you can call Rick and go sign them!) until the proper, constitutional deadline of May 5, 2026.
The history of the deadline for submitting an initiative petition reflects that there was no deadline throughout most South Dakota history.
The deadline was unspecified for many years. Technically, an initiative could have been submitted at any time to the Secretary of State for signature validation. However, there was a legal requirement that the legislature either enact the petitioned initiative in full or vote to put the initiative on the ballot (generally done through a Joint Resolution), For many years the Legislature met only every other year and for 60 days (continuous, I believe, with no breaks). I assume that it had to be forwarded to the Legislature by the Secretary of State at some point during the Legislature. I do not know if the Legislature ever held special sessions to pass a Joint Resolution to put an initiative on the ballot. Interestingly, I don’t believe there was any requirement for the Legislature to put a referred law on the ballot. I’m not sure how that was done in times past, but I think it just required a finding by the Secretary of State that the required number of signatures had been collected.
Over the years Constitutional Amendments shifted the number of days the Legislature would meet and went to annual sessions, but no deadline for initiative submission was set in law. From a practical standpoint, initiative sponsors made sure to get petitions to the Secretary of State in time so that she could forward her findings regarding the required number of signatures to the Legislature. The Legislature would then use a Joint Resolution to place the matter on the ballot.
That was the system that was in place during the 1980s. In 1984 two initiatives dealing with nuclear issues were petitioned. Both obtained the required number of signatures, but Majority Leader Homer Harding was threatening to not bring up the Joint Resolution to put them on the ballot. That would have presented a clear Constitutional violation.. Senator Harding relented reluctantly, and the Nuclear Waste Coalition’s eventually initiative won.
Over the next few years it became clear that everyone wanted to reform the way initiatives were put on the ballot to prevent a Constitutional crisis. First, legislators thought having to pass a Joint Resolution to put an measure on the ballot might reflect their support for the measure. They wanted out, and they pointed to other states who didn’t have the Joint Resolution requirement. The issue then became who was going to place the initiative on the ballot. That was easy. The Secretary of State was already responsible for doing that for referred laws. The final problem was if the Legislature was out of the Joint Resolution requirement, there was no legal legal deadline for submission. Everyone came to the same conclusion.
Here was the thinking. Many legislators thought a later deadline March, April or May would put it outside the legislative session, and might reduce the heat on them. The Secretary of Sate thought her office could better handle signature checking outside the busy time of the legislative sessions and before the busy time of the primary elections. The only folks concerned about the Constitutional question were the citizens, of which I was one. We were concerned that the Legislature might find ways to make the initiative harder to use by passing a lot of up-front bureaucracy, which would take time away from gathering signatures Some legislators were already suggesting ways to do that. So we wanted the extra time to gather signatures and protect our Constitutional rights. It took a while, but the Legislature got around to creating a lot of that bureaucracy that costs money and time to deal with.
In the end, everyone’s interests seemed to mesh and the bill with the new deadline passed. I think it may have changed a month back and forth over the years, but it’s always been well after the legislative session since the late 1980s or early 1990s.
Thank you, Cory for your testimony in support of Dakotans for Health!
Continuing on from the my little history lesson on the deadline the current deadline could actually be moved to July. Back when Alice Kundert was Secretary of State the way they counted signatures was much more time consuming. It could take a week, because they checked every signature up to the required number of signatures. Legislation changed that to a sampling system at some point, I think in the 2000s. It takes less than a day to complete that check. If they would legislate Cory’s suggestion to allow electronic processing of petition signatures against the registered voter list, it could be checked instantaneously as signatures came in.
As I think back on the