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.