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SD Voice v. Noem

United States District Court, D. South Dakota, Northern Division

January 9, 2020



          CHARLES B. KORNMANN United States District Judge.

         Plaintiffs filed this lawsuit seeking a permanent injunction against the enforcement of South Dakota House Bill 1094 ("HB 1094"), which was enacted by the Legislature during the 2019 legislative session and signed by the Governor on March 21, 2019. HB 1094 amends certain provisions of the South Dakota Code and establishes a new set of regulations that apply to the proponents of ballot initiative campaigns. Plaintiffs claim, inter alia, that HB 1094 violates the First Amendment to the United States Constitution. A court trial on the merits of this case was held on December 9, 2019.


         The South Dakota Constitution expressly reserves to the electorate the rights to initiative and referendum. S.D. Const, art. III, § 1. To place an initiative on the ballot, South Dakota law requires that "[a]ll measures proposed by initiative shall be presented by petition. The petition shall be signed by not less than five percent of the qualified electors of the state." S.D. Codified Laws § 2-1-1. This provision by necessity requires the sponsors of ballot initiatives to petition the public, attempting to convince eligible voters to sign said petition. Let me say at the outset that judges must very carefully approach constitutional questions as to whether an act of a legislative body should be struck down. In our system of government, this is known as judicial restraint. I approach the issues in this case with that frame of mind.

         HB 1094's primary purpose is to severely regulate the process through which those who wish to circulate a petition may do so. It is entitled, "An Act to revise certain programs regarding transparency of the petition circulation process." HB 1094. It is composed of eleven sections. This case is primarily concerned with Section 1, Section 3, and Section 4.

         Section 1 defines certain terms that relate to the application of the other sections. The most important of those definitions is that of "petition circulator," defined as:

a person who is a resident of this state for at least thirty days prior to registration as a petition circulator, is at least eighteen years of age, and who circulates, for pay or as a volunteer, petitions or solicits petition signatures from members of the public for the purpose of placing ballot measures on any statewide election ballot. South Dakota HB 1094, Section 1(1), 1094ENR.pdf (last accessed December 23, 2019).

         Section 3 is the primary regulating framework that would apply to petition circulators and persons who solicit petition signatures. It establishes a strict regulatory framework with which anyone meeting Section l(1)'s broadened definition of a petition circulator must comply. Regulated individuals must submit an application to the Secretary of State and obtain an ID number. The application must contain the following information:

For each ballot measure on which a petition circulator seeks to circulate a petition, the petition circulator shall certify the circulator's name, that the circulator is at least eighteen years of age, physical address of current residence, physical address of prior residence if current residence is less than one year, email address, phone number, state of issuance for driver license, state of voter registration, occupation, the ballot question committee supporting the ballot measure, whether the petition circulator will be volunteer or paid, and whether the petition circulator is a registered sex offender.

Id. at Section 3. There are also strict compliance requirements and penalties included in HB 1094, Section 3:

The certification under this section shall be submitted to the office of the Secretary of State. If any statement included in the petition circulator's certification is determined to be false, any signatures collected by the petition circulator are void and may not be counted. Petition sponsors shall provide a list to the Secretary of State of any person acting as a petition circulator for the sponsor's ballot measure, whether the petition circulator is paid or volunteer and, if paid, the rate of compensation.

Id. Section 3 is the most significant section as pertains to this lawsuit. It is the primary burden placed on "petition circulators," as defined in Section 1, and it is the most significant regulatory change delivered by HB 1094.

         Section 4 creates the directory described in Section 3 that will reflect information collected through that framework. The directory must be developed and maintained by the Secretary of State to be made "available upon request and payment of reasonable fees." Id. at Section 4. A person who requests access to the directory will receive all of the petition circulator information collected pursuant to Section 3 of the Act, as well as certain information pertaining to the ballot measure itself and the petition sponsors.

         HB 1094 is scheduled to take effect on July 1, 2020.

         Plaintiffs argue that HB 1094 is unconstitutional on its face as it violates the First Amendment. It is asserted that HB 1094 discriminates based on viewpoint, violates established Supreme Court precedent regarding disclosure laws, is substantially overbroad, vague, and cannot be properly severed. Each challenge will be addressed in turn.


         The Supreme Court's descriptions of its doctrine of viewpoint discrimination have not remained perfectly consistent throughout time, but at the core of the doctrine is the precept that "[i]n the realm of private speech or expression, government regulation may not favor one speaker over another." Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995), citing Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). Rosenberger went on to explain that "[w]hen the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. Id. at 829. "Because '[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,' Citizens United v. Federal Election Comm'n, 558 U.S. 310, 340 (2010), we have insisted that 'laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference." Reed v. Town of Gilbert. Ariz., 135 S.Ct. 2218, 2230 (2015), quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 658 (1994).

         In the instant case, it is speech based on the perspective of the speaker that is in jeopardy. The Court has specifically noted that "[t]he government must abstain from regulating speech when the specific ... perspective of the speaker is the rationale for the restriction." Rosenberger, 515 U.S. at 829 (internal citations omitted). HB 1094 specifically applies a burden to the speech of those who "solicit" others to sign ballot measure petitions, but not those who solicit them not to do so. The disfavored perspective in the instant case is that of individuals seeking to place a ballot measure on a statewide election ballot, because in soliciting others to sign the petition they become burdened by HB 1094. Those who seek to maintain the status quo, leaving all lawmaking matters to the legislature, will not see their speech so encumbered. 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.

         According to HB 1094, the regulatory framework of Section 3 only applies to those who fall under the definition of a petition circulator as defined in Section 1 of the Act. It is important to note, however, that Section l(1)'s definition of a "petition circulator" also includes anyone who "solicits petition signatures from members of the public for the purpose of placing ballot measures on any statewide election ballot." HB 1094, Section 1(1). This phrase in the definition of a petition circulator is preceded by the word "or," indicating that a person described by the phrase would be considered a "petition circulator" under HB 1094's framework without any further qualification. Thus, the question is raised: what does it mean to "solicit" signatures within the meaning of the Act?

         The word "solicit" is not specially defined in the Act. "It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014), citing Perrin v. United States, 444 U.S. 37, 42 (1979) (internal quotations omitted).

         Dictionary definitions can offer a good starting point for courts seeking to understand what meaning legislators intended by their use of a certain word. Merriam- Webster. ...

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