South Dakota law hinders 'core political speech' of ballot measures, federal court rules
The change strikes down law requiring ballot measures and amendments referred by petition to compile all required signature one year prior to Election Day.
PIERRE, S.D. — With several big-ticket petition drives hoping to earn a spot in front of voters on Election Day in 2024, a ruling by the Eighth Circuit Court of Appeals last week striking down South Dakota’s signature deadline as unduly restricting speech is welcomed news, organizers say.
“From our perspective, it sounds like the court is more protective of the ballot initiative process than the South Dakota Legislature,” said Rick Weiland, a ballot measure organizer with Dakotans for Health, which is behind attempts to put provisions allowing abortion access and repealing the grocery tax on the 2024 ballot.
The lawsuit that led to the decision was brought by Cory Heidelberger, an active political writer in the state who publishes the Dakota Free Press and runs a ballot question committee called SD Voice, which also participated in the challenge.
The defendants included Gov. Kristi Noem, Attorney General Marty Jackley and Secretary of State Monae Johnson, all in their official roles.
Under current South Dakota law, initiated measures looking to change state law must collect valid signatures equal to 5% of the total votes cast in the previous gubernatorial election.
In comparison, initiated amendments looking to change the state constitution must reach a 10% threshold.
For consideration on the 2024 ballot, measures and amendments must reach about 17,000 and 34,000 signatures, respectively.
Petition signature drives have exactly one year to collect the necessary signatures to find their way onto the ballot, stretching from 24 months to 12 months before the targeted election.
However, in an opinion issued on Feb. 17 by Judge L. Steven Grasz — who was appointed by President Donald Trump and confirmed by the Senate in 2017 — that one-year-prior deadline was struck down as inhibiting the “core political speech” of circulating and signing petitions to further political and social change.
“It is common sense that cabining core political speech in the form of petition circulation to a period no closer than a year before an election would dilute the effectiveness of the speech,” Grasz wrote in the opinion.
While the federal court did recognize “legitimate state interests in administrative efficiency and election integrity,” the defense, in their mind, failed to show that the deadline was necessary for these ends. The state, “merely relies on a bare assertion of election integrity rather than evidence or a reasonable response connected to the filing deadline,” Grasz wrote.
The immediate impact of this ruling requires clarification from the South Dakota Legislature to fill a glaring hole now at the center of the petition issue.
“Thus, the question on every petition sponsor‘s mind is, When are our petitions due?” Heidelberger wrote in a piece laying out the Eighth Circuit’s ruling. “The answer is… We don’t know!”
Although a lower court had ruled in favor of returning the deadline to six months prior to the coming election, the Eighth Circuit simply ruled the current deadline unconstitutional and signaled support for a deadline at most six months prior, leaving the exact deadline up to legislative order.
“It’s all hands on deck because there are bills in the legislature looking to make [the process] harder again,” Weiland said about whether the ruling changes his organization’s calculus ahead of 2024.
One of those proposals is House Bill 1200, which would require an equal amount of petition signatures to come from each legislative district in the state. That bill will appear in front of the House Local Government committee on Feb. 21.
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or firstname.lastname@example.org.