Judge strikes down South Dakota initiative petition circulator disclosure requirement

On Friday, U.S. District Judge Charles Kornmann ruled that South Dakota House Bill 1094 violated the First Amendment of the U.S. Constitution.

The bill was designed to do the following:
• require a paid petition circulator to register with the secretary of state and provide certain information;
• establish a paid petition circulator registration fee of $20;
• require petitioners to wear a badge identifying the committee and ballot measure for which they are collecting signatures and their paid or volunteer status; and
• make other changes to the state’s rules on petition circulators.

SD Voice and Cory Heidelberger filed the lawsuit challenging House Bill 1094. In the ruling, Kornmann wrote that the bill’s definition of a petition circulator was broad enough to apply to anyone who publicly advocated for the signing of an initiative petition and that the disclosure requirements were discriminatory against initiative petition supporters and restricted free speech. Kornmann wrote, “These disclosure provisions place serious and draconian burdens on protected speech. While the state’s interests in effective administration of the law and ensuring that its laws are followed are important, the state has ample means of doing so that would not chill speech.” Kornmann also ruled that all of the provisions of 1094 were intimately connected and that, therefore, none of the other provisions could be severed from the disclosure requirements he ruled unconstitutional.

House Bill 1094 was approved by the state legislature in a vote of 19-13 in the state Senate and 51-14 in the state House. Gov. Kristi Noem (R) signed it into law on March 21, 2019. South Dakota is one of 21 Republican state government trifectas, which means Republicans control both chambers of the state legislature and the governor’s office.

Ballotpedia tracked 229 legislative proposals concerning ballot initiatives, veto referendums, referrals, local ballot measures, and recall in 34 states in 2019. Thirty-eight (38) proposals had been approved in 16 states: Arizona, Arkansas, California, Florida, Indiana, Iowa, Maine, Montana, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, and Utah.

So far, two citizen initiatives have qualified for the 2020 South Dakota ballot. One is an initiated state statute to establish a medical marijuana program in the state. The other is an initiated constitutional amendment to legalize recreational marijuana and require the legislature to pass laws legalizing medical marijuana. The signature deadline for 2020 ballot initiatives in South Dakota passed on November 3, 2019.

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Additional Reading:
Changes to laws governing ballot measures in 2020