The Eighth Circuit will hear Dakotans for Health v Johnson, 25-2940, on Tuesday, June 9. This is the case over the February petition deadline for South Dakota initiatives. The lower court had struck it down on free speech grounds, reasoning that petitioning is free speech activity, and excluding such petitioning from months in the late winter and early spring of election years violates the First Amendment.

An earlier South Dakota case on the deadline for initiatives had struck down the old November deadline (of the year before the election) under the same reasoning. That case was South Dakota Voice v Noem, 21-3195. The three judges in that case included James B. Loken, a Bush Sr. appointee, and Raymond Gruender, a Bush Jr. appointee. The upcoming hearing next month will be before those two judges, as well as Jane Kelly, an Obama appointee. Unlike many other circuits, the Eighth Circuit reveals in advance of hearings who the judges will be.

One cannot assume that because Judges Loken and Gruender struck down November of the year before the election, that they will necessarily be inclined to strike down February of the election year. Nevertheless, it seems encouraging that those two judges are on the panel. If the plaintiffs win this case, that will be a powerful precedent against early petition deadlines for new parties and independent candidates.