South Dakota’s 2018 initiative banning out-of-state ballot measure campaign contributions ruled unconstitutional

On April 9, 2019, Judge Charles Kornmann overturned South Dakota Initiated Measure 24, which banned contributions to ballot measure campaigns from outside of the state. Initiated Measure 24 was approved by South Dakota voters in 2018 55.5 percent to 44.5 percent.
Kornmann’s ruling blocks the state from enforcing the initiative, which was set to become effective on July 1, 2019. His decision applies to two lawsuits filed against the measure: he declared that Measure 24 violated the First Amendment and the Commerce Clause of the U.S. Constitution by impeding political free speech rights and interfering with the transfer of money from one state to another.
Kornmann, a federal judge with the United States District Court for the District of South Dakota, said the evidence in the case “demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy.”
Concerning an appeal of the decision, Timothy Bormann, chief of staff for Attorney General Jason Ravnsborg (R), said that the attorney general’s office was considering the ruling and “examining the avenues available to our office that best coincide with protecting the best interests of the people and the State of South Dakota.”
In 2016, two years before Initiated Measure 24 was on the ballot, $12.5 million was contributed to the campaigns in support of or opposition to measures in South Dakota (out of about $1 billion nationwide). Out-of-state donors accounted for 75 percent ($9.4 million) of ballot measure campaign contributions in the state.
The South Dakota State Legislature considered legislation proposing a ban on out-of-state ballot measure campaign contributions in 2018. In 2017, bills to prohibit or restrict out-of-state spending on ballot measure campaigns were introduced but not approved in Arizona, North Dakota, and South Dakota. Rep. Mark Mickelson (R-13), the speaker of the South Dakota House of Representatives, sponsored 2017 and 2018 legislation to restrict out-of-state spending on ballot measure campaigns. Mickelson also sponsored the initiative petition drive and the support campaign for Measure 24.