PIERRE, S.D. — South Dakota’s statutory deadlines to submit petitions to initiate new state laws and amendments to the state constitution both violate the U.S. Constitution, according to the U.S. Eighth Circuit Court of Appeals.
SD Voice, a ballot-measure committee headed by Cory Heidelberger, had challenged the state laws requiring citizen-initiated petitions be filed one year before elections.
U.S. District Judge Charles Kornmann had ruled earlier in favor of the challenge to the initiated-measure deadline but rejected the challenge to the initiated constitutional-amendment deadline.
The appeals court however found in favor of both challenges. In its decision, the appeals court said the initiated-measure deadline ran afoul of the First Amendment guarantee of free speech.
Circuit Judges Steven Grasz, James Loken and Raymond Gruender reached the unanimous decision.
In the panel’s announcement, Grasz wrote, “The filing deadline clearly limits the number of voices that will convey a message on the ballot by pushing back the deadline to one year before a general election. Petition circulation, as a result, is effectively banned an entire year before the general election. The deadline further makes it less likely that SD Voice will secure the number of signatures necessary to place the matter on the ballot, thus limiting the ability to advance statewide discussion on political issues.”
The panel also found no legal basis for the one-year deadline on constitutional amendments and ruled that too violated the First Amendment. “The statutory language, the proffered state interests, and the evidence are virtually identical for both deadlines,” the panel said.
The panel in a footnote said, “We note Article 23, Section 1 of the South Dakota Constitution requires the text of the proposed constitutional amendment and the names and addresses of its sponsors to be submitted a year before the general election. It is silent as to the deadline for petition signatures.”
The appellate judges agreed however with the State of South Dakota’s argument that Judge Kornmann erred in setting a six-month deadline. That part of the case was remanded to the district court for further action.
No word was immediately available from the office of South Dakota Attorney General Marty Jackley on whether the decision would be further appealed.
Heidelberger wrote on his blog that the appellate panel’s ruling leaves no date in law for when petitions are due. He suggested the Legislature should select the second Tuesday of July in the election year as the deadline.
“Absent immediate Legislative action, the Secretary of State would not know if she can accept petitions after this November 5, or after next May 7, or maybe even right up until the day before she must print ballots and deliver them to county auditors on August 13. We cannot wait for the 2024 Session. We cannot wait for Attorney General Marty Jackley to petition the Supreme Court for a hearing that wouldn’t resolve this matter until the summer of 2024. The Legislature must resolve this question now, in accordance with Friday’s ruling and the First Amendment rights of South Dakotans to circulate initiative petitions during an election year.”
