United States District Court, D. South Dakota, Northern Division
MEMORANDUM OPINION AND ORDER
CHARLES B. KORNMANN United States District Judge.
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
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.
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.
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).
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
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
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.
is scheduled to take effect on July 1, 2020.
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.
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,
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.
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?
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).
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. ...