Eighth Circuit skeptical of South Dakotans' challenge to ballot petition deadline

ST. PAUL, Minn. (CN) — A federal appeals court panel on Tuesday appeared largely unmoved by a challenge to South Dakota’s early deadline for citizen-led ballot measures that an advocacy group claims chills political speech.

During oral arguments, the three-judge Eighth Circuit panel repeatedly pressed advocacy group Dakotans for Health, casting sharp doubt on claims that moving the state’s citizen-led petition deadline back by three months creates a severe constitutional burden.

The dispute stems from the state’s House Bill 1184, a 2025 law that shifted the submission deadline for citizen-led ballot measure petitions from the first Tuesday in May to the first Tuesday in February.

While South Dakota claims the deadline change offers more time to litigate legal challenges against ballot measures, Dakotans for Health sued last year, arguing the February cutoff serves no compelling state interest and makes it harder to get signatures during harsher winter months.

“House Bill 1184 eliminates three months of core political speech for no good reason,” Dakotans for Health attorney James D. Leach said to a panel that appeared far more receptive to South Dakota’s defense of the statute.

U.S. Circuit Judge James Loken pushed back on the assertion that a February deadline unconstitutionally chokes off political expression. The George H.W. Bush appointee questioned why a nine-month window should be treated as a fatal blow to campaigns, rather than a manageable regulatory timeline to be navigated through proper planning and preparation.

“When they prioritize pre-election litigation, they are acting in what they perceive as a state interest," Loken said, noting even if perfect compliance cannot be guaranteed, the state has a valid interest in trying to maximize the amount of litigation completed on the front end.

State attorneys urged the judges to reverse a lower court’s August 2025 ruling permanently enjoining the law, arguing the court gave the state “no leeway at all” to structure its own electoral process.

The state contends the February deadline is a reasonable measure designed to give public and private challengers enough time to litigate the validity of petition signatures before an election occurs.

“Harder, tougher or more difficult is just not the standard for invalidating a state law regulating the decision process,” South Dakota Solicitor General Paul Swedlund said, arguing changing the deadline by three months does not cut out citizens’ abilities to bring measures.

The state claims the previous May deadline gave too little time to challenge ballot measures — arguing the state has a significant interest in not having courts decide the lawfulness of a passed initiative after an election.

“Voters feel disenfranchised, they lose confidence in the system when these things appear on the ballot, and then a court comes along later, and says ‘no, we’re nullifying, we’re not going to recognize the outcome of the vote,’” Swedlund said.

U.S. Circuit Judge Raymond Gruender, a George W. Bush appointee, pressed the state on whether a nine-month buffer is truly effective, questioning if any real evidence exists in the record that extensive citizen litigation could actually be wrapped up in that timeframe.

South Dakota, conceding court battles often last far longer than nine months, argued a lot of election challenges could be solved in that window, adding such challenges also provide voters with more information on the benefits and drawbacks of a given initiative.

“Any regulation deadline makes things a little harder or tougher,” Swedlund said. “The question here, more than merely inconvenience, is one which cannot be met through proper planning and preparation, and there’s nowhere in the record in this case that they [appellees] cannot meet that deadline through proper planning.”

Leach countered that the state’s interest in resolving pre-election challenges isn’t sufficient to withstand judicial scrutiny, noting state Supreme Court precedent has routinely allowed ballot challenges after an election.

“No matter how you slice this case, that’s still going to be the law in South Dakota,” he said, met quickly by a remark from Loken claiming the postelection litigation point is “not worth a hill of beans” for Leach’s argument.

U.S. Circuit Judge Jane Kelly pressed Leach on a practical limit for federal courts, questioning how judges are supposed to decide which election deadlines are allowed and which ones go too far.

“How do you draw a line here — nine months, eight months, seven months? Is it a matter of evidence that the state has to put on to determine how long a case will actually take to get resolved before the election?” the Barack Obama appointee asked, to which Leach again said there is not enough backing for South Dakota’s law when post-election relief exists.

“The state says this nine‑month deadline just allows for three more months of litigation that may or may not result in a final result before the election,” Leach said. “That is not a strong enough interest to justify banning South Dakotans’ core political speech.”

In 1898, South Dakota became the first state to allow citizens to petition to create laws and place those laws on the ballot, and later authorized citizens to amend the state constitution the same way.

Dakotans for Health notes in court documents recent South Dakota citizen initiatives include laws and amendments regarding healthcare patients’ rights, minimum wage, medical marijuana, campaign finance and lobbying and Medicaid expansion.

The group argues HB 1184 is one piece of a larger, yearslong effort by the Legislature to claw back political power from voters, characterizing the February deadline as an intentional barrier designed to force advocacy groups to gather tens of thousands of signatures during the state’s harsher winter months.

The case lands in the Eighth Circuit just three years after the same court struck down a previous South Dakota law enforcing a strict one-year pre-election deadline in SD Voice v. Noem. Following that ruling, the state briefly settled on a six-month May deadline before pivoting to the currently challenged nine-month restriction.