South Dakota GOP direct democracy restrictions remain blocked

In a win for voters, appeals court judges upheld a lower court ruling that permanently blocked a Republican-backed South Dakota law that would have made it harder for citizens to put new laws or constitutional changes directly on the ballot.

In an order Tuesday, an 8th Circuit Court of Appeals panel agreed with a district court’s finding that the law violated South Dakotans’ free speech protections by severely restricting the time they have to pursue policy changes through the state’s citizen initiatives process.

“The district court held that the deadline violated the First Amendment and issued a permanent injunction. We affirm,” Circuit Judge Raymond Gruender, who was nominated by former President George W. Bush, wrote in the panel’s majority opinion.

Gruender was joined by Circuit Judge Jane Kelly, an Obama nominee, while Judge James Loken, who was nominated by former President George H.W. Bush, dissented.

Through House Bill 1184, which they passed last year, Republican lawmakers sought to shorten the pre-election deadline for filing ballot measures from May to February. 

In practice, the deadline change would mean that citizens hoping to get an initiative on the ballot would have to gather thousands of signatures in the middle of winter and nine months before an election.

Dakotans for Health, a grassroots organization that sued South Dakota Secretary of State Monae Johnson (R) over the law, argued that the earlier deadline was designed to silence citizen-led efforts that Republicans oppose. 

In recent years, South Dakotans have used the initiative process to legalize medical marijuana and expand Medicaid in the state.

In his dissent, Loken claimed that the panel’s decision was “plainly inconsistent” with Supreme Court precedent and out of step with other appeals courts’ decisions on similar initiative restrictions in other states.

Johnson could appeal the panel’s decision to the Supreme Court.

In addition to making it harder for voters to pursue initiatives, South Dakota Republicans have also tried to make it harder for voters to pass those that make it on the ballot.

Earlier this year, the GOP-controlled legislature passed a resolution placing a constitutional amendment on the ballot that, if passed, would require a 60% supermajority to pass future amendments instead of the simple majority that’s currently needed.