SD Voice v. Noem

• Decision Date: 30 August 2021
• Docket Number: 1:19-CV-01017-CBK
• Citation: 557 F.Supp.3d 937
• Parties: SD VOICE, Cory Heidelberger, Plaintiffs, v. Kristi L. NOEM, Governor of South Dakota, in Her Official Capacity; Jason Ravnsborg, Attorney General of South Dakota, in His Official Capacity; and Steve Barnett, Secretary of State of South Dakota, in His Official Capacity, Defendants.
• Court: U.S. District Court — District of South Dakota

557 F.Supp.3d 937

SD VOICE, Cory Heidelberger, Plaintiffs,

v.Kristi L. NOEM, Governor of South Dakota, in Her Official Capacity; Jason Ravnsborg, Attorney General of South Dakota, in His Official Capacity; and Steve Barnett, Secretary of State of South Dakota, in His Official Capacity, Defendants.

1:19-CV-01017-CBK

United States District Court, D. South Dakota, Northern Division.

Signed August 30, 2021

James D. Leach, Attorney at Law, Rapid City, SD, for Plaintiffs.

Jeffery J. Tronvold, Holly R. Farris, Attorney General of South Dakota, Pierre, SD, for Defendants Kristi L. Noem, Jason Ravnsborg, Steve Barnett.

MEMORANDUM OPINION AND ORDER

CHARLES B. KORNMANN, United States District Judge

This matter is once again before the Court on remand from the United States Court of Appeals for the Eighth Circuit, Doc. 68, to examine South Dakota's procedures surrounding its voter initiated constitutional amendments and initiated statutory ballot measures, which are imposed on plaintiffs as circulators and sponsors of ballot measure petitions. The question before the Court is whether the time that is allowed for petition circulation and the final submission deadline for the petition unconstitutionally burden plaintiffs’ rights of free expression under the First Amendment.

BACKGROUND

This matter was originally before the Court as a challenge to South Dakota House Bill 1094 ("HB 1094"), which amended the procedure citizens had to follow in order to place a measure on the statewide election ballot. This Court struck down the pertinent provisions of HB 1094 after a bench trial, in an opinion dated January 9, 2020. See SD Voice v. Noem, 432 F. Supp. 3d 991, 994 (D.S.D. 2020), appeal dismissed, 987 F.3d 1186 (8th Cir. 2021). Both parties appealed portions of the opinion to the Eighth Circuit, which dismissed the case as moot after the South Dakota Legislature repealed HB 1094. The Eighth Circuit then remanded the case for consideration of plaintiff's fifth cause of action in that case.

The South Dakota Constitution expressly reserves to the electorate the rights to initiative and referendum. See S.D. Const. art. III, § 1 ; Brendtro v. Nelson, 720 N.W.2d 670, 683 (S.D. 2006) (holding that "the people's power [under article III, § 1 of the South Dakota Constitution ] to propose measures includes the power to propose repeal of existing laws."). The South Dakota Constitution also allows for constitutional amendments by voter initiative. See S.D. Const. art. XXIII, § 1. The value placed on citizen-led initiatives is clear from the State's own motto: "Under God the People Rule."

To place any initiative measure seeking a statutory change on the state-wide election ballot, initiative sponsors must collect and submit a petition containing the signatures of five percent of the total number of registered voters in the state. That petition must be circulated within a one-year period that begins no earlier than 24-months and ends no later than one-year before the general election on the ballot of which the measure will appear. SDCL § 2-1-1.2.¹ Thus, there is a one-year window to collect and submit the required number of signatures ("the circulation period"). Of course, a sponsor does not have to begin petition circulation two-years in advance of the election, but regardless of when the initiative sponsors begin to circulate their petition, the petition and all signatures must be filed no later than one-year prior to the general election ("the filing deadline").

Amending the South Dakota Constitution by initiative requires "a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election." S.D. Const. art. XXIII, § 1. A petition containing the names and addresses of the amendment's sponsors and the required number of signatures must be filed at least one-year prior to the general election on the ballot of which it will receive a vote. See id. SDCL 2-1-1.1 also imposes the requirement that no petition for a constitutional amendment may begin circulating earlier than 24-months before the election on the ballot of which it will appear for a vote. Thus, the same one-year circulation period applies to initiatives seeking to amend the state constitution as applies to any other initiated measure. The only difference between an initiated law and a constitutional amendment by initiative is the number of signatures required.

Once the petitions have been filed, the Secretary of State evaluates the submitted materials and determines whether the State's legal requirements have been met. An important step taken by the Secretary is the counting and verification of a sample of the submitted signatures. During the December 2019 bench trial, Kea Warne, then Director of Elections of the Secretary of State's office, testified that a random sample of "like, 2.3 [percent]" of collected signatures were actually reviewed by the Secretary. Trial Transcript at 121. Thus, the actual number of signatures reviewed by the Secretary of State's office was about 700 out of the total of about 34,000 that were collected.

Plaintiffs argue that the deadline is unduly restrictive and violates the First Amendment right of freedom of speech because it unduly burdens free expression without adequate justification.

The State's proffered interest is in administrative efficiency and election integrity. The State argues that the burden on speech that the deadline creates is incidental and justified by the State's compelling interests.

Plaintiffs challenge both the requirements of SDCL 2-1-1.2 regulating ballot measure petitions as well as the one-year filing deadline contained in S.D. Const. Art. XXIII, § 1 and the further requirements of SDCL 2-1-1.1 concerning constitutional amendment by initiative.

DISCUSSION

I.

Petition circulation and the expression that surrounds it are each acts of expression that are considered "core political speech." Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 186, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). And, as such, "First Amendment protection for such interaction ... is ‘at its zenith.’ " Id. at 187, 119 S.Ct. 636. In its next breath, the Supreme Court also stated that "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Id. (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). Thus, courts examining regulations of the petitioning process must balance these two competing interests, ensuring that the Constitution is respected without making the State's administration of its elections untenable.

It is of some interest in the context of ballot initiative campaigns to understand that:

[a]lthough the First Amendment protects political speech incident to an initiative campaign, it does not protect the right to make law, by initiative or otherwise. In Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1208 (10th Cir. 2002), [the Tenth Circuit] considered a free speech challenge to a Colorado law that allowed the citizens of "home rule" counties to initiate legislation, but did not extend that right to citizens of "statutory" counties. [The Circuit Court] held that "the right to free speech ... [is] not implicated by the state's creation of an initiative procedure, but only by the state's attempts to regulate speech associated with an initiative procedure." Id . at 1211 (emphasis added).

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006). The Eighth Circuit has similarly held that the First Amendment has nothing to say about a state choosing to make it more difficult to change law using ballot initiatives. The only concern of the First Amendment is the regulation of speech itself. See Wellwood v. Johnson, 172 F.3d 1007, 1009 (8th Cir. 1999) (holding that an Arkansas law that increased the number of signatures required on initiative petitions for local-option elections but not for initiatives of any other sort did not violate the First Amendment because making it more difficult to place a measure on the ballot does not, without more, restrict upon speech.); Dobrovolny v. Moore, 126 F.3d 1111, 1112 (8th Cir. 1997), cert. denied , 523 U.S. 1005, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998) (Holding "that the appellants’ inability to know in advance the exact number of signatures required in order to place their initiative measures on the ballot" did not infringe upon their right to free speech under the First Amendment because it "in no way restricted their ability to circulate petitions or otherwise engage in political speech.").

The First Amendment is very concerned with a regulation that would make it more challenging to circulate petitions and collect the required number of signatures, or chill voter speech by somehow making a voter reluctant to sign a petition they otherwise might. Regulations of the petition circulation process often both restrict speech and make it more difficult to place the measure on the ballot. If a given regulation makes circulation more difficult because it restricts petition circulation and, thus, the speech associated with circulation activities, the First Amendment requires that the regulation pass exacting scrutiny.

The petition filing deadline and circulation period restrict speech by making it "less likely that [plaintiffs] will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion."

Meyer v. Grant, 486 U.S. 414, 423, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). A long filing deadline also restricts the amount of speech and discussion that will surround a proposed initiative because circulation activities will be far removed from the time of the election. The circulation period also restricts the sheer quantity of speech surrounding petition circulation because only a single year of...