South Dakota laws setting deadlines for petitions violate free speech guarantees of the U.S. Constitution. That’s according to an opinion released Friday, Feb. 17, by the Eighth Circuit Court of Appeals.
A lower federal court ruled last year that requiring filing of petitions a full year before the election is too long for those seeking to make changes to state law. But the judge upheld a one-year deadline for amendments to the state constitution.
The Eighth Circuit heard arguments on this latest appeal in October.
The state argued that petitions have to be delivered to the Secretary of State a year before the election for administrative reasons.
The law’s challenger, South Dakota Voice, argued that free political speech is hampered by unwieldy regulation.
In its opinion, the Eighth Circuit ruled that Federal Judge Charles Kornmann was correct in finding that a one-year deadline limits political speech of those who circulate petitions seeking to change existing statutes or initiate new ones—in other words, initiated or referred measures.
But the appellate court found that the lower court erred in justifying a one-year deadline for petitions to amend the South Dakota Constitution.
The Eighth Circuit also determined that Judge Kornmann did not have the authority to set a new deadline of six months, restoring the timeframe of earlier years for initiated and referred measures.
During oral arguments, Assistant Attorney General Clifton Katz and Judge Steven Grasz discussed what would have happened if Judge Kornmann had invalidated the one-year deadline without setting a new one:
GRASZ: “What would be the state of the law? Would there just be no deadline at all and the legislature would need to step in and make one?”
KATZ: “There would have been no deadline then.”
Without a court-imposed deadline, Katz said the dilemma would have fallen back on the state.
“Our legislature would have had to step in,” he said. “They would have had to call a special session or something to get a law enacted to try to comply with the judge’s ruling.”
That conversation sums up what has now happened. The Eighth Circuit sent the case back for an amended ruling from Judge Kornmann in accordance with this opinion, leaving the state legislature to fix its laws.
