A legal challenge to a dead law goes before the Eighth Circuit Court of Appeals on December 16th. In 2019, the South Dakota legislature put restrictions on proponents of ballot initiatives. In January 2020, a federal judge found the law to be unconstitutional. The 2020 legislature replaced it with a new law, but the state still appealed the judge’s ruling on the old one.
Cory Heidelberger is the voice of South Dakota Voice, as well as the writer and editor of Dakota Free Press, an online political blog.
“House Bill 1094 was supposed to take effect on July 1st, but it essentially went away. So the law the state is technically appealing, 1094, isn’t even law anymore.”
Heidelberger says after Federal Judge Charles Kornmann stopped the law from taking effect, the legislature introduced and passed Senate Bill 180. That new law backs away from some of the restrictions of the earlier bill, but Heidelberger says it still has the same problems.
“You’re making individuals register with the state, put their names in a public database, and surrender their identifying information on the street at the moment of circulation.”
He says the Eighth Circuit’s decision on the old bill will possibly decide some of the issues on the new one.
Judge Kornmann was asked by both parties to decide if the deadline for filing petitions is so early as to unconstitutionally stifle the initiative process. Currently petitions have to be filed with the Secretary of State a full year before the election.
Heidelberger says both the state and South Dakota Voice included the issue in briefs and in testimony at trial. But the judge declined to rule and didn’t give a reason why.
“We can scratch our heads as to why, but the fact is, that issue was argued in court and it wasn’t resolved, and so our appeal says this is a salient point. It’s the one issue that wasn’t resolved, and it should be resolved.”
The Eighth Circuit is hearing arguments telephonically because of the COVID-19 pandemic. A panel of three appellate judges will consider the case and issue a ruling at some point in the future.
The state is represented by the Attorney General’s office. That agency does not comment on ongoing litigation.