South Dakota’s restrictions on paid petition circulators have been shot down by the Eighth Circuit Court of Appeals.
The state legislature passed Senate Bill 180 in 2021, requiring petition carriers to give personal information that would then be made public. A federal district judge issued an injunction that prevented the state from enforcing the law, and the Eighth Circuit has upheld that injunction.
Dakotans for Health is the organization that put Medicaid expansion on the 2022 ballot. It sued in federal district court after the state legislature enacted Senate Bill 180, and U.S. District Judge Lawrence Piersol issued a preliminary injunction in June 2021. The state appealed Judge Piersol’s decision to the Eighth Circuit, with oral arguments held in March this year.
Dakotans for Health attorney Jim Leach argued that petition carriers, whether they’re paid or not, are subject to intimidation and harassment, and the state’s specified purpose of protecting the integrity of elections does not outweigh the chilling effect Senate Bill 180 has on the free speech rights of paid petitioners.
“There is no substantial relationship to a significantly important governmental interest to focus and discriminate only against paid circulators, thereby discriminating against use of money to enable political speech, which of course is the core holding of Citizens United,” Leach said.
The Eighth Circuit agreed. It noted that the U.S. Supreme Court has found in the past that requiring circulators to wear a name badge would expose them to recrimination or retaliation for carrying petitions on volatile issues.
In its opinion, the Eighth Circuit said publicly posting contact information such as the circulators’ home address, phone number, and email address would allow anyone with access to the Internet to find out more about them, including where their children go to school. The three-judge panel upheld Judge Piersol’s preliminary injunction.
The Eighth Circuit is still deliberating another South Dakota lawsuit, SD VOICE v. Noem. That case debates whether the state can require initiated measure petitions to be turned in a year before the election. The Eighth Circuit heard those arguments on Oct. 17.
