Dakotans for Health v. Noem
| Docket Number | 21-2428 |
| Decision Date | 01 November 2022 |
| Citation | 52 F.4th 381 |
| Parties | DAKOTANS FOR HEALTH, Plaintiff - Appellee v. Kristi NOEM, South Dakota Governor, in her official capacity; Mark Vargo, South Dakota Attorney General, in his official capacity; Steve Barnett, South Dakota Secretary of State, in his official capacity, Defendants - Appellants South Dakota Biotech Association, Amicus on Behalf of Appellants |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the appellant and appeared on the brief was James Ellis Moore, of Sioux Falls, SD. The following attorneys also appeared on the appellant brief; Justin G. Smith, of Sioux Falls, SD. and Jacquelyn Angela Bouwman, of Sioux Falls, SD.
Counsel who presented argument on behalf of the appellee and appeared on the brief was James D. Leach, of Rapid City, SD.
The following attorney(s) appeared on the amicus brief of South Dakota Biotech Association in support of appellants; Matthew S. McCaulley, of Sioux Falls, SD. and Christopher D. Sommers, of Sioux Falls, SD.
Before GRASZ, STRAS, and KOBES, Circuit Judges.
This appeal requires us to evaluate the constitutionality of a South Dakota law imposing new obligations on persons compensated to circulate initiative petitions. The district court1 preliminarily enjoined South Dakota officials from enforcing these requirements. We affirm.
Article III, § 1 of the South Dakota Constitution provides: In other words, the South Dakota Constitution protects the right of South Dakota voters to legislate through ballot initiatives. S.D. Const. art. III, § 1. Likewise, the South Dakota Constitution provides voters the right to propose constitutional amendments by initiative. See S.D. Const. art. XXIII, § 1. To qualify for the ballot, initiative petitions proposing a constitutional amendment must be "signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election." Id.
Within constitutional bounds, the procedures governing the initiative process are controlled by the South Dakota legislature. See S.D. Codified Laws, ch. 2-1. In 2020, the South Dakota legislature passed, and the governor signed into law, Senate Bill 180 ("SB 180"), part of which imposed additional requirements for paid petition circulators in the state and specified penalties for failure to comply with those requirements. This case concerns the constitutionality of those additional requirements.
SB 180 has four relevant provisions. First, it compels paid ballot petition circulators to disclose their name, residential address, email address, phone number, government-issued identification, voter registration state, petition sponsor name, and sex offender status prior to circulating any petition for a ballot measure. S.D. Codified Laws § 2-1-1.5. Second, it requires these disclosures to be "available upon request" in a publicly available directory, while the petitions are still being circulated and prior to commencement of the signature verification process. Id. §§ 2-1-1.5 and 2-1-1.6. Third, it voids all signatures gathered by the paid circulator if any information is false or if the registration form is incomplete. Id. § 2-1-1.5. Fourth, it requires paid circulators and petition sponsors to update the information within seven days of any change. Id.
The underlying dispute arose when Dakotans for Health ("DFH"), a South Dakota ballot question committee,2 sought to place a constitutional amendment measure on South Dakota's 2022 general election ballot. To get on the ballot, DFH would need to submit nearly 34,000 valid signatures to the South Dakota Secretary of State. When DFH filed its complaint, it employed a paid petition circulator, Pam Cole, to help it obtain these signatures. And DFH said it expected to employ more circulators in the future to obtain the signatures necessary to qualify the proposed constitutional amendment for the ballot. But DFH believes SB 180 will chill paid petition circulators from working, thereby hindering DFH from obtaining the signatures to place the constitutional amendment measure on the ballot. Indeed, Cole testified that while she would continue her work circulating petitions, she believed other paid petition circulators would "be unwilling to disclose" the information required by the statute, and as a result would stop working rather than comply with SB 180's disclosure requirements.
DFH sued the relevant South Dakota government officials (collectively, "Appellants" or "South Dakota") in federal court and moved to preliminarily enjoin enforcement of SB 180, arguing many of SB 180's requirements violate First Amendment free speech protections. DFH cited the fact that the South Dakota legislature previously passed House Bill 1094 ("HB 1094"), which imposed public disclosure requirements like those in SB 180 for all ballot petition circulators. Before HB 1094 was adopted, the bill's sponsor was quoted in a news story as stating, "professional out-of-state petition circulators ... are trying to bring their California and Massachusetts liberal agendas" to South Dakota. He was also quoted as stating the bill would keep away one particular individual's "out-of-state liberal allies." After a district court enjoined HB 1094 as violating the First Amendment, SD Voice v. Noem , 432 F. Supp. 3d 991, 1003 (D.S.D. 2020), the same legislator then sponsored SB 180. The only relevant difference between HB 1094 and SB 180 is that whereas HB 1094 applied to all petition circulators, SB 180 applies only to paid petition circulators.
In response to the suit, Appellants countered by arguing that DFH lacked standing to sue and that the preliminary injunction factors did not weigh in favor of injunctive relief. The district court concluded DFH did have standing to sue and held SB 180 likely violated the First Amendment by not being substantially related to South Dakota's interests in election integrity and preventing election fraud. The district court then preliminarily enjoined enforcement of SB 180.
On appeal, the Appellants again argue DFH does not have standing to challenge SB 180. Alternatively, they argue the preliminary injunction was unwarranted and improper and thus the district court abused its discretion by entering it. We disagree on both counts.
We review whether a party has standing de novo. Dalton v. NPC Int'l, Inc. , 932 F.3d 693, 695 (8th Cir. 2019). "To establish standing ‘[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ " Young America's Found. v. Kaler , 14 F.4th 879, 887 (8th Cir. 2021) (alteration in original) (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ); accord Animal Legal Def. Fund v. Vaught , 8 F.4th 714, 718 (8th Cir. 2021). South Dakota does not dispute the second element but argues DFH fails to show an injury in fact and redressability.
There are two types of injuries conferring standing for prospective First Amendment relief. See Missourians for Fiscal Accountability v. Klahr , 830 F.3d 789, 794 (8th Cir. 2016). The first occurs when a plaintiff alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Id. (quoting Babbitt v. Farm Workers , 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) ). The second occurs when a plaintiff self-censors. Id. (citing 281 Care Comm. v. Arneson , 638 F.3d 621, 627 (8th Cir. 2011) ). Self-censoring occurs when a plaintiff alleges it "would like to engage in arguably protected speech, but that [it] is chilled from doing so by the existence of the statute." Arneson , 638 F.3d at 627.
The burden is on DFH, as the plaintiff, to establish standing. Animal Legal Def. Fund , 8 F.4th at 718. When assessing standing at the preliminary injunction stage, this circuit has assumed the complaint's allegations are true and viewed them in the light most favorable to the plaintiff. See, e.g. , Jones v. Jegley , 947 F.3d 1100, 1103 (8th Cir. 2020) ; Rodgers v. Bryant , 942 F.3d 451, 454 (8th Cir. 2019).
The First Amendment standing inquiry is "lenient" and "forgiving." Turtle Island Foods, SPC v. Thompson , 992 F.3d 694, 699-700 (8th Cir. 2021). This leniency "manifests itself most commonly in the doctrine's first element: injury-in-fact." Klahr , 830 F.3d at 794 (quoting Cooksey v. Futrell , 721 F.3d 226, 235 (4th Cir. 2013) ). And when, as here, "threatened enforcement effort implicates First Amendment rights, the [standing] inquiry tilts dramatically toward a finding of standing." Id. .
Since an evidentiary hearing was waived and because we are only at the preliminary injunction stage, the record here is not extensively developed. In addition to the complaint, DFH relies on the declaration of Cole, a paid petition circulator who worked for DFH, and sworn in-court testimony of Miller Cannizzaro from the HB 1094 litigation.
Cole testified that though she complied with SB 180's disclosure requirements while working for DFH, she believed—based on twenty years’ experience in South Dakota politics—many paid circulators will be unwilling to comply with SB 180. She explained DFH's inability to recruit paid circulators will make it much harder for DFH to obtain signatures.
Cannizzaro testified about his efforts in 2015 to circulate a ballot initiative to control payday lending. Cannizzaro...
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