Federal Judge Blocks South Dakota Petition Law

(CN) – A federal judge struck down as unconstitutional a South Dakota law imposing burdensome regulations that would have made it much harder for the average citizen to get an initiative on the ballot.

Governor Kristi Noem signed House Bill 1094 into law on March 21, 2019, requiring petition circulators to wear name tags and register with the secretary of state.

The law further mandates that circulators provide the state with their personal information, such as their home address, email and phone number to be included in a public directory, potentially exposing people to harassment.

A federal judge ruled a petition law signed by Republican South Dakota Governor Kristi Noem last year as unconstitutional.

Political activist and Aberdeen resident Cory Heidelberger sued Noem, along with Attorney General Jason Ravsnborg and Secretary of State Steve Barnett in July 2019 to stop the law from taking effect.

Aside from the unduly onerous disclosure requirements, Heidelberger said the law discriminates based on viewpoint, since it only applies to petition proponents.

U.S. District Judge Charles Kornmann agreed. “The content and effect of the Act makes this discrimination unmistakable. If you favor the status quo and oppose change, you are not regulated. If you favor change of one sort or another, you are extensively regulated,” he wrote in a 15-page ruling issued Thursday.

While lawmakers said the law encourages transparency in the initiative process, Heidelberger’s attorney Jim Leach said in a phone interview Thursday that it is unfairly aimed at those who would challenge government rule in a state where every high office holder is Republican.

Leach said in recent years, citizens have brought an initiative to raise the minimum wage and an ethics measure aimed at government corruption. Both initiatives passed and the Republican supermajority was none too happy about it.

“The Republican powers that be strongly disapproved of these, they passed this law which is intended to impose unbelievable burdens on people who would circulate petitions,” Leach said.

The state’s demand for every circulator’s personal information, which citizens are required to update within seven days of any change lest they risk invalidating every signature collected, also raise serious questions about invasion of privacy and intimidation tactics.

“You’ve got to turn your name, home address, email address, occupation, into the state, and the state is required to make that publicly available to anyone who wants it,” Leach said. “So anybody can come in and get your private information and start sending you mass junk email. They can come to your house and protest.”

Kornmann was similarly critical of the disclosure requirements.

“These disclosure provisions place serious and draconian burdens on protected speech,” he wrote. “The directory would be available to not only those opposing the initiative process, but also to anyone seeking to use normally highly confidential information for possibly sinister purposes, such as robo-calling entities and mass-marketing organizations.

“South Dakota has attempted to impose on many of our own citizens enormous invasions of privacy and serious risks of being subjected to unwanted and sometimes dangerous harassment. No legitimate governmental interest permits these heavy-handed measures, noncompliance with which threatens criminal and civil penalties.”

Kornmann also took issue with the law’s incredible scope, under which any member of the public who asks someone else to vote for a ballot measure would be treated as a petition circulator required to register with the state.

“It matters not that an individual does not collect a signature from the listener, nor that the speaker does not work with someone who collects signatures. The fact that a person has entreated a member of the public to sign a petition to place a measure on the statewide election ballot is enough to make them a petition circulator under the Act,” Kornmann wrote.

The law would likewise extend to newspaper opinion pages, a threat Leach said was challenged by the local news media. “The three biggest newspapers ran editorials saying this law is out to lunch.” he said.

Lawyers with the South Dakota Attorney General’s office did not return emails seeking comment late Thursday.

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