This article has been revised to reflect the following correction: A paragraph referencing the case SD Voice v. Noem was removed as it incorrectly stated that the case dealt with number of ballot signatures required.
SIOUX FALLS, S.D. (KELO) — For the second time since its signing, a bill affecting the ballot initiative process in South Dakota is being brought to court for concerns it violates First Amendment rights.
A lawsuit filed last week by the League of Women Voters of South Dakota alleges that Senate Bill 180, which was signed into law in 2020 by Governor Kristi Noem, violates the First and Fourteenth Amendments. The bill itself requires paid and unpaid circulators of petitions for ballot initiatives and constitutional amendments to reside in South Dakota for at least 30 days.
“You know, the ballot initiative process is one of the most direct ways that people can shape our government. And we think this is government overreach,” League of Women Voters of South Dakota President Amy Scott-Stoltz said.
The lawsuit, which can be read in its entirety here, maintains that Senate Bill 180’s not only violates the United States Constitution, specifically the First and Fourteenth Amendment, but also Article VI of the South Dakota Constitution.
Scott-Stoltz said that the law became an issue for the League of Women of Women Voters of South Dakota when they attempted circulate a petition to create an independent redistricting commission. Due to only having 138 members in South Dakota, and concerns from some members about COVID, the League reached out to neighboring branches in other states and the national organization to help.
“Because of the rural nature of our state, going door to door is difficult, not impossible, but difficult, and just requires more volunteers than it does in more urban areas,” Scott-Stoltz said. “So, getting that information out about issues, and then letting the voters decide at the polls, where the residency and all of that is applicable.”
Due to the new law, the South Dakota branch was unable to use members of the organization outside of South Dakota. That included one plaintiff named in the case, Susan Randall, who now resides in Michigan but owns property in South Dakota. Randall and her husband had planned to spend two weeks in South Dakota in 2021 to assist in circulating petitions but were not able to because of the law in place.
The lawsuit directly cites what they call an “anomalous situation” where someone like Randall could spend one night in South Dakota and be eligible to sign a petition and vote, after securing residency, but would need to spend 30 days in order to circulate the petition.
“Basically, the idea is there’s our federal constitution… does not stop when you cross state lines. So, your free speech is still your First and Fourteenth Amendment rights are still active, whether or not you’re in the state you reside,” Scott-Stolz said.
In fact, a non-resident of South Dakota only has to reside in South Dakota for one night to become eligible for residency and therefore is able to register as a voter as long as they don’t have a residence out of state.
“In South Dakota, you can become, like you said, a citizen in a day, but then you can’t fully participate in the government for 30 days, because you’re, you’re not able to participate in the petition process. So that is infringing on their rights,” Scott-Stoltz said.
Scott-Stolz pointed to other states that struck down similar laws, including a case in Nebraska that successfully challenged a law on the basis of violating the First Amendment rights of political free speech. The South Dakota lawsuit uses this case as precedent for their arguments.
Also mentioned in the suit is Initiative & Referendum Inst. v. Jaeger, which upheld a similar law to the one being challenged in South Dakota. In that case, the court cited election fraud as part of the reasoning behind the decision. While it contradicts the League’s argument, they point out that in South Dakota, only three cases of ballot petition fraud have been found in the last 20 years according to the Heritage Foundation.
Scott-Stoltz said when it comes to the lawsuit they’ve brought to the state, the League is trying to protect South Dakotans right to petition and be educated on policy within the state.
“Well, the League of Women Voters has always been dedicated to voter education and participation,” Scott-Stoltz said. “And we believe that that this creates an unnecessary barrier for citizens to engage in the ballot initiative process. You know, the ballot initiative process is one of the most direct ways that people can shape our government. And we think this is government overreach.”
