Marty Jackley, Jon Hansen, and the state of South Dakota lose again in their effort to stifle direct democracy. Yesterday on a 2–1 decision, a panel of Eighth Circuit judges rejected a state appeal and affirmed South Dakota District Court Judge Camela C. Theeler’s September 2025 ruling that an early-February deadline for submitting initiative petitions is too darn early.
Recall that plaintiff Rick Weiland and his ballot-question-advocacy group Dakotans for Health brought this suit to challenge 2025 House Bill 1184, which moved the deadline for submitting signed initiative petitions up from the first Tuesday in May to the first Tuesday in February. With Rapid City attorney Jim Leach at the litigative helm, Weiland/Dakotans for Health convinced Judge Theeler that taking away those three months of signature-gathering time severely infringed on citizens’ free speech without supporting the interest the state claimed in allowing more private investigation and lawsuits to challenge initiative petitions before the election.
Writing for himself and concurring Judge Jane L. Kelly (2013 Obama appointee), Judge Raymond Gruender (2004 Bush appointee) notes that the state conceded important ground to Weiland/Dakotans for Health. The state granted that “the nine-month deadline places some ‘burden’ on its citizens’ speech” and that the District Court set the right standard in requiring the state to show that the nine-month deadline “is reasonable, nondiscriminatory, and furthers an important regulatory interest.”
Gruender and Kelly cast doubt on the state’s professed interest in pre-election petition challenges, noting as Leach did before Theeler that the state never asserted this interest in past defenses of early petition deadlines. But as Gruender writes, even if this newly cooked-up interest exists, the state failed to show that requiring citizens to submit petitions three months earlier, in the dead of winter, supports that interest:
- State law and precedent (i.e., the state’s entirely post-election of marijuana-legalizing 2020 Amendment A) already guarantee petition challengers can block petitions and ballot measures before, during, and after an election.
- Courts are unlikely to fully resolve petition challenges before the election even with nine months for conducting such challenges.
- The state provides no evidence that unresolved challenges will boost public confidence in initiative and referendum.
Judge James B. Loken (1990 Bush appointee) dissented, saying the federal court has no authority to micromanage state elections. Loken further countered that the 2025 HB 1184 “need not guarantee that challenges to citizen initiative petitions will conclude before the election to protect [the state’s] election integrity interest. It is self-evident that more lawsuits will resolve in nine months than in six.”
Loser Attorney General Jackley immediately declared his intent to ask the full Eighth Circuit to review the panel decision and roll the dice on finding more support for Gruender’s dissent than for the arguments that have now beaten Jackley twice.
Lokken’s point about micromanaging state elections misses the point. There was no set deadline for the first 80 or so years of the initiative process. The first actual deadline was set in the late 1980s, and it was set, if I remember correctly, within the late March to early May time period. That time frame was recommended by Alice Kundert because it was outside the legislative session and before the June primary elections, which were busier times for the SOS office. It also accommodated any attempts to disqualify signatures by any opponents of an initiative petition. That time frame was agreeable to the groups who were bringing initiatives and those who were opposing certain initiatives at the time, because it was understood that state courts would prioritize these election-related matters. It was also agreeable to the Legislature who felt it helped them unclutter legislative sessions.
Unlike Hansen’s bill and others like it, which was aimed at hindering citizen initiated ballot measures, the change in the 1980’s had the support of people who had supported various initiatives, people who had opposed certain initiatives, the Secretary of State and the Legislature. I was a compromise that had the support of just about everyone in South Dakota.
Donald,
Before the legislature was removed from the initiative process in the 1988 election, the legislature was required to vote to submit each initiative to the voters. This meant that the effective due date was “early enough that the legislature can do its job”. That date, of course, was fluid, but sometime March-April. Before the change to yearly legislative sessions, that date was March-April of the odd year, some 18 months before the election in November of the even year.
It is worth noting that petitions for initiatives that stated they had enough signatures were filed several times in the early 1900s, including 1903 (women’s suffrage amendment), 1905 (Richards Primary), and 1907 (county/local liquor option), with the need for signature gathering in winter, even if only one made it onto the ballot.
These initiatives, however, were not subject to LRC or AG pre-review, however, which affects the timeline significantly.
The first statutory deadline for petitions was created in 1989, ch. 23 (see https://sdsdl-montage.auto-graphics.com/#/item-details/entities_6190). That bill put the first day of May due date in SDCL 2-1-2, which no longer exists in statute.
I look back at the session where that deadline was set and think what a great thing that happened with the bill to reform the way initiatives were put on the ballot. There were intense conflicts in the 1980s that led to lawsuits, bad feelings between citizens and the Legislature, and the Governor, resulting in a number of initiatives due to the Legislature siding with corporations over citizens. Then Governor Mickelson came into office and the Legislature came around to its senses, and Alice Kundert provided some helpful input, and lobbyists and citizens activists decided they would engage. And everyone agreed in the end. The way initiatives were put on the ballot was reformed, along with this very first deadline set a couple months outside the legislative session.
Compare that to how Hansen attempted to shove this deadline down citizens’ throats with his bill. He made no attempt to get people together to suggest reform of the process or discuss alternative deadline dates. It’s probably this arrogant attitude and his inability to seek compromise that led to his poor showing as a candidate for Governor.
Hansen is like Republicans everywhere. DeSantis spent state money to defeat abortion rights in Florida. He didn’t care that they still received 57 percent of the vote. Majority’s don’t mean anything to Republicans. They love winning elections with less votes. It’s their lying cheating way. They want to rule anyway possible.