A Senate bill that would put restrictions on paid petition carriers is under scrutiny by the Eighth Circuit Court of Appeals, which heard oral arguments on Thursday, March 17.
In 2021 the South Dakota legislature passed Senate Bill 80, requiring paid carriers’ personal contact information to be made public.
Opponents say the requirement exposes carriers to harassment and disenfranchises voters who sign the petitions. But the state says it has an interest in protecting the election process from error or fraud.
Federal Judge Lawrence Piersol granted a preliminary injunction in June 2021 to stop Senate Bill 80 from becoming law.
The bill applies to paid carriers of petitions gathering signatures for initiated or referred measures. It requires them at the beginning of the process to give their names, home addresses, email addresses, and phone numbers to the Secretary of State to be included in a public registry.
The law was challenged by Dakotans for Health, a group that successfully gathered signatures to put Medicaid expansion on the ballot in November.
At oral arguments before the Eighth Circuit, attorney James Moore represented the state. He said although a First Amendment right of free speech is at issue, this is state-created legislation to guard against fraud or error.
“The state is entitled to regulate its initiative and referendum processes,” he said, “and in that regulation and in reviewing that regulation, the state is entitled to considerable deference, to substantial latitude, to some leeway.”
The attorney for Dakotans for Health is James Leach. He said the public registry would expose paid circulators to harassment from opponents. He also noted that circulators have to update their contact information within seven days of any change, and if they fail to do so, the signatures they collect would be invalid.
He said this requirement threatens the free speech of voters who choose to support initiatives.
“The state has no interest in disqualifying the signature of an honest voter because the circulator failed, after obtaining it, to update within seven days, perhaps moving and perhaps completely inadvertently,” he said.
Leach told appellate judges that South Dakota already requires circulators to disclose their names and home addresses, under oath, at the time they deliver the petitions.
The three-judge Eighth Circuit panel will deliberate and issue an opinion at a later date.
