A federal judge has found South Dakota’s 2020 restrictions on petition circulators to be unconstitutional.
Judge Lawrence Piersol ruled earlier this week that Senate Bill 180 violates the First Amendment rights of initiated measure proponents, voters, and petition circulators.
Senate Bill 180 came about after another South Dakota federal judge, Charles Kornmann, found House Bill 1094 unconstitutional. That 2018 bill made a more aggressive attempt to rein in petition carriers.
The state appealed that first loss to the Eighth Circuit Court of Appeals, and while that appeal was pending, the legislature passed Senate Bill 180 to try to fix what Judge Kornmann found wrong.
The fix didn’t work.
The panel of three Eighth Circuit appellate judges seems puzzled during oral arguments in December 2020. They’re asked to decide the constitutionality of a state law that no longer exists: House Bill 1094.
The state is represented by Deputy Attorney General Jeff Tronvold. He tells the appellate court that Senate Bill 180 made some substantial changes to House Bill 1094.
"I guess as we interpreted SB 180, we felt that it was more of a clarification, to fix the fact that Judge Kornmann’s definitions were extremely broad, where this clarified … I believe clarified the intent of the original bill.”
The previous law required all petition carriers to register with the Secretary of State and give up personal information that would become part of a public database.
Tronvold tells the appeals court that Senate Bill 180 lifted some of those requirements and limited them to paid petition circulators, not to volunteers.
“There’s no requirement that includes the occupation of the circulator; it does not include the requirement that the circulator’s identification number is on the badge.”
But Tronvold says the vast majority of Senate Bill 180 is still consistent with House Bill 1094.
When one of the judges asks what should happen with Judge Kornmann’s ruling, Tronvold replies:
“We believe the proper procedure at that point would be to vacate Judge Kornmann’s decision.”
Tronvold’s opposition disagrees.
Rapid City attorney Jim Leach represents South Dakota Voice and Cory Heidelberger, the party who won in federal court.
Leach speaks against vacating Judge Kornmann’s ruling even if the Eighth Circuit finds the appeal to be moot. Leach says the ruling makes findings on a common situation, when governmental powers look for ways to limit the right of the voters to initiate laws.
“And so Judge Kornmann’s decision in this case has application around the country, certainly in many states in the country, all those states that allow initiatives. And the only reason…”
Question: (unintelligible) “…opinion. It’s not binding on anybody.”
Answer: “It’s not binding, your honor, but I think we can all agree that the courts often give deference to what other courts have found.”
Leach says Senate Bill 180 has eliminated some of the most blatantly unconstitutional provisions in House Bill 1094, but remaining problems need to be challenged separately from this lawsuit.
“It seems to me to a large extent what the state is asking the court to do is to speculate on the arguments that could be made for or against 180 and then resolve those arguments as a court of first impression, which I suspect this court is reluctant to do.”
Leach suspected correctly. In its opinion issued in February 2021, the Eighth Circuit found the appeal to be moot but declined to vacate Judge Kornmann’s ruling that House Bill 1094 was unconstitutional. The appellate court let it stand as a matter of public interest.
Now Judge Lawrence Piersol has issued a similar opinion on the constitutionality of the Senate Bill that replaced the House Bill.
The plaintiff in this case is a ballot question committee, Dakotans for Health, and its chairman, Rick Weiland. The group is attempting to put the question of expanded Medicaid to the voters on November 8, 2022, a feat that requires submitting almost 34,000 valid signatures, a year in advance to the Secretary of State.
Senate Bill 180 provides that all signatures gathered by a circulator can be declared invalid if that person made errors on disclosure forms.
Judge Piersol notes in his opinion that the required disclosures of paid circulators in South Dakota are more invasive than those previously struck down in other states by the U.S. Supreme Court.
Here, in addition to names and addresses, circulators have to give phone numbers, email addresses, state of issuance of driver’s license or other I.D., state of voter registration, and whether the applicant is a registered sex offender.
Piersol finds that putting that information into a public database before petitions are circulated allows for harassment or intimidation of circulators in advance of their interactions with voters. That situation could deter them from taking a job to gather signatures. As a result, they lose their right to free political speech, and initiative proponents could have difficulty getting the needed signatures before deadline.
And if the proposal doesn’t make the ballot, voters are deprived of engaging in political discussion about the initiative.
Piersol notes that there are South Dakota statutes requiring petition carriers to provide identifying information after signatures have been collected and petitions are submitted. Those laws ensure the state’s ability to safeguard the integrity of the initiative process without restricting free political speech in advance.
Judge Piersol’s ruling, of course, is subject to appeal. If that happens, the case goes to the Eighth Circuit Court of Appeals, where another three judges will hear arguments.