EIGHTH CIRCUIT STRIKES DOWN SOUTH DAKOTA’S FEBRUARY PETITION DEADLINE FOR INITIATIVES
On August 11, the Eighth Circuit struck down South Dakota’s February petition deadline for initiatives. Dakotans for Health v Johnson, 25-2940. This was somewhat surprising, because at the oral argument in June, one of the judges had seemed skeptical of the case. The vote was 2-1. The decision is by Raymond Gruender, a Bush Jr. appointee, and is also signed by Jane Kelly, an Obama appointee. James B. Loken, a Bush Sr. appointee, dissented.
The decision has implications for ballot access for minor parties and independent candidates.
The fight over South Dakota’s deadline for initiative petitions began in 2019, when a group called SD Voice sued over the November (of the year before the election) deadline. SD Voice complaiined that setting the deadline that early made it impossible for voters to decide whether to support an initiative, based on what the legislature might have done early in the election year. SD Voice also complained that, in general, interest in political issues is not as great in odd years as it is in even years (election years).
SD Voice won that case in the Eighth Circuit in 2023. 60 F.4th 1071. The decision says that circulating a petition is free speech activity, and that the Constitution does not permit states to curtail that type of free speech activity for such a long period of time (i.e., all the months of even years) without a good reason. “South Dakota has banned all participation in the petition process one year before the next election…The filing deadline clearly limits the number of voices that will convey a message on the ballot by pushing back the deadline to one year before a general election.”