Last month U.S. District Court Judge Camela C. Theeler told Secretary of State Monae Johnson and her minions that they cannot enforce an unconstitutionally early February deadline on the submission of statewide citizen initiative petitions. The state is appealing that injunction, but given the Eighth Circuit’s record on petition deadline cases, we won’t hear from the higher court until after the 2026 general election, by which time voters will already have spoken on whatever ballot questions are legally submitted for their consideration.
Yet Secretary of State Monae Johnson’s Ballot Question Information webpage ignores that court order and continues to tell voters they must file initiative petitions by the illegal and enjoined February 3, 2026 deadline:
The SOS BQI webpage asterisks the deadline and disclaims, “The February 3, 2026 deadline is subject to litigation and may change,” but that warning ignores the practical fact that the litigation has effectively changed that deadline. The Secretary cannot enforce the February 3 deadline. Since Judge Theeler’s order prohibits the enforcement of the provisions of 2025 House Bill 1184, which moved the deadline up three months from the first Tuesday in May to the first Tuesday in February, the Secretary of State must act as if 2025 HB 1184 never existed, meaning she must act as if the law says the deadline is still May 5, 2026.
This situation is different from the state’s previous loss in petition-deadline litigation, when Judge Charles Kornmann struck down the November filing deadline, 12 months before the election, that was in effect in 2021. In that August 2021 decision, Judge Kornmann enjoined enforcement of the filing deadline on the books in SDCL 2-1-1.2. Judge Kornmann replaced that deadline with a six-month deadline that he deemed the earliest date that would satisfy First Amendment rights, but the Eighth Circuit said the court can’t establish a new deadline. The state was thus left for a brief but thrilling time without any enforceable petition deadline, at least until the 2023 Legislature enacted Judge Kornmann’s will and set the deadline back to the first Tuesday in May.
Judge Kornmann blocked enforcement of a specific statute; Judge Theeler enjoined a specific bill that amended statute. Where Judge Kornmann and the Eighth Circuit left a vacuum the Legislature had to fill, Judge Theeler has left a discernible deadline in place: May 5, 2026, the deadline dictated by statute prior to HB 1184’s unconstitutional error.
The Secretary of State has an obligation to help voters understand and exercise their constitutional right to circulate petitions. That includes telling voters the crucial point of when those petitions must be submitted. She doesn’t have to explain all the jurisprudential details (I’m happy to do that for you, Monae), but she does need to tell voters that right now, for all practical purposes, that date is May 5, 2026. The Secretary of State cannot enforce any earlier deadline.
Secretary Johnson can and should keep that asterisked disclaimer:This deadline is subject to litigation and may change. She could even take the Noem/Trump approach and use her public website to assign partisan blame for the uncertainty: Radical Republicans are trying to take away your First Amendment rights and deny you three months of circulation time, but their court appeal is still pending.
But right now, by law and court order, the deadline for submitting statewide initiative petitions to the Secretary of State is May 5, 2026. The Secretary of State needs to edit her website to say that.
Is SOS Johnson willfully violating a court order or is it just the usual incompetence of Republican officeholders, or is it something else.
I would bet that SOS Johnson is taking orders from someone farther up the chain of command. After all, having that misinformation up on the SOS site might dissuade folks from beginning an initiative drive at this time.
There’s a growing unrest in Midwest states about out-of-state interests run by billionaires targeting their states for lots of data centers and untested modular nuclear power plants. There might be some people out there who would want to place some sort of moratorium on such developments. Keeping that date up on the SOS website might dissuade people from beginning such a drive this year.
The date is indisputably the 3rd of February, with an asterisk to clearly denote to the petitioners there is more to look into.