SD VOICE v. Kristi Noem ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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Nos. 21-3195/21-3197
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SD Voice and Cory Heidelberger
Appellees/Cross-Appellants
v.
Kristi Noem, Governor of South Dakota, in her official capacity;
Marty Jackley, Attorney General of South Dakota, in his official capacity; and
Monae Johnson,1 Secretary of State of South Dakota, in her official capacity
Appellants/Cross-Appellees
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Appeal from United States District Court
for the District of South Dakota
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Submitted: October 19, 2022
Filed: February 17, 2023
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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1
Marty Jackley has been elected to serve as Attorney General of South Dakota,
and Monae Johnson has been elected to serve as Secretary of State of South Dakota.
Both are substituted under Federal Rule of Appellate Procedure 43(c).
GRASZ, Circuit Judge.
SD Voice and Cory Heidelberger raised a First Amendment challenge to
South Dakota’s statutory deadlines to submit petitions to initiate South Dakota
statutes and to amend the South Dakota Constitution. After a bench trial, the district
court agreed the filing deadline for petitions to initiate statutes violates the First
Amendment to the United States Constitution, but the filing deadline for petitions to
amend the state Constitution does not. The district court then permanently enjoined
three South Dakota officials from enforcing the unconstitutional deadline and crafted
a new filing deadline. We affirm in part, reverse in part, and remand.
I. Background
The South Dakota Constitution authorizes its citizens to propose changes to
state statutes and the state Constitution. See S.D. Const. art. III, § 1 (statutes); S.D.
Const. art. XXIII, § 1 (Constitution). There are a number of hurdles to clear before
a proposed change is placed on a statewide ballot, including obtaining the requisite
number of petition signatures. See S.D. Codified Laws §§ 2-1-1, 2-1-1.3(4).
Petitions to initiate a state statute “shall be signed by not less than five percent of the
qualified electors of the state.” Id. § 2-1-1; see also S.D. Const. art. III, § 1. And
petitions to amend the state Constitution must be “signed by qualified voters equal
in number to at least ten percent of the total votes cast for Governor in the last
gubernatorial election.” S.D. Const. art. XXIII, § 1.
To meet the threshold, circulators cannot start collecting signatures too early
because “no signature may be obtained more than twenty-four months preceding the
general election that was designated at the time of filing of the full text.” S.D.
Codified Laws §§ 2-1-1.2, 2-1-1.1. And the statutory deadline to file petitions to
initiate statutes or amend the state Constitution is “one year before the next general
election.” Id. (emphasis added); see also S.D. Const. art. XXIII, § 1. This results in
a one-year circulation period, which ends a full year prior to a general election. As
the parties note, the filing deadline had previously been April of a general election
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year and was moved to November of the year prior to the general election. See 2009
S.D. Sess. Laws ch. 64 §§ 8, 11.
SD Voice, a ballot question committee operated by Cory Heidelberger, seeks
to use petitions to effectuate political change. Frustrated with recent changes to
South Dakota law that impacted its mission, SD Voice sued South Dakota’s
Governor, Attorney General, and Secretary of State in their official capacities. 2 In
particular, SD Voice challenged the filing deadlines under South Dakota Codified
Laws §§ 2-1-1.1 and 2-1-1.2 as well as the recently enacted HB 1094. After a bench
trial, the district court concluded HB 1094 was unconstitutional but did not reach SD
Voice’s claim regarding the filing deadlines under South Dakota Codified Laws
§§ 2-1-1.1 and 2-1-1.2. See SD Voice v. Noem, 432 F. Supp. 3d 991, 1003 (D.S.D.
2020).
SD Voice and South Dakota appealed. See SD Voice v. Noem, 987 F.3d 1186,
1188 (8th Cir. 2021). The South Dakota Legislature then enacted SB 180, which
substantially changed HB 1094. Id. Accordingly, we dismissed the appeals as moot
but remanded for the district court to consider the unresolved claim. Id. at 1191–92.
That claim, as pled in SD Voice’s amended complaint, was a First Amendment
challenge to the filing deadlines under South Dakota Codified Laws §§ 2-1-1.1 and
2-1-1.2. This appeal exclusively focuses on these statutory filing deadlines.
On remand, the district court applied exacting scrutiny to the challenged
statutes and held South Dakota’s deadline to submit petitions to initiate state statutes
violates the First Amendment, but the deadline to submit petitions to amend the state
Constitution does not. See SD Voice v. Noem, 557 F. Supp. 3d 937, 943, 946 (D.S.D.
2021). The district court reasoned the filing deadlines restricted speech by making
it less likely SD Voice would be able to collect the necessary signatures to qualify
for the statewide ballot. Id. at 942–43. Turning to the State’s purported interests,
2
We refer to SD Voice and Heidelberger collectively as “SD Voice.” We also
refer to the South Dakota Governor, Attorney General, and Secretary of State
collectively as “South Dakota.”
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the district court recognized legitimate state interests in administrative efficiency
and election integrity. Id. at 945. Yet it concluded there was no evidence “in the
record that even suggests that the one-year requirement lends anything of value to
the State.” Id. at 945–46. After noting that South Dakota election officials complied
with a prior six-month filing deadline, the district court held “the First Amendment
requires a filing deadline no earlier than six months before the election.” Id. at 945.
The district court’s conclusion as to the deadline for petitions to amend the
state Constitution was different. It reasoned the stakes for petitions to amend the
state Constitution “are much higher” because “constitutional amendments cannot be
undone, except by further constitutional amendments.” Id. at 946. The district court
also pointed to an interest in ensuring constitutional amendments “are well thought
out” and that corresponding petitions comply with various legal requirements. Id.Thus, the district court held “the one-year filing deadline for Constitutional
amendment petitions passes exacting scrutiny.” Id.The district court then entered a permanent injunction, severed the
unconstitutional deadline from the rest of the statute, and crafted a new filing
deadline: “the first Tuesday in May during the year of the election.” Id. at 948–49.
SD Voice and South Dakota appealed.
II. Analysis
We review de novo SD Voice’s challenge under the First Amendment to the
United States Constitution. Calzone v. Summers, 942 F.3d 415, 419 (8th Cir. 2019)
(en banc). The district court awarded a permanent injunction after a bench trial. “A
permanent injunction requires the moving party to show actual success on the
merits.” Miller v. Thurston, 967 F.3d 727, 735 (8th Cir. 2020) (quoting Oglala Sioux
Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008)). “The decision to
grant or deny permanent injunctive relief is an act of equitable discretion by the
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district court, reviewable on appeal for abuse of discretion.” 3 eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
A. Filing Deadline for Petitions to Initiate State Statutes
The district court concluded SD Voice was burdened by the filing deadline
for petitions to initiate state statutes and held the deadline fails exacting scrutiny.
See S.D. Codified Laws § 2-1-1.2. South Dakota argues the district court erred by
concluding the filing deadline implicates the First Amendment. South Dakota insists
that even if the filing deadline restricts speech, any First Amendment burden is not
severe and its interests justify the restriction.
The First Amendment, incorporated against the States under the Fourteenth
Amendment, prohibits laws that abridge the freedom of speech. See U.S. Const.
amend. I; Meyer v. Grant, 486 U.S. 414, 420 (1988). SD Voice challenges South
Dakota’s filing deadlines for petitions as violative of the freedom of speech.
Because SD Voice seeks “injunctive relief that would ‘reach beyond the particular
circumstances’ here, it brings a facial challenge.” Missourians for Fiscal
Accountability v. Klahr, 892 F.3d 944, 948 (8th Cir. 2018) (quoting John Doe No. 1
v. Reed, 561 U.S. 186, 194 (2010)). To succeed on its facial challenge, SD Voice
must show (1) “no set of circumstances exists under which the [filing] deadline
would be valid”; (2) the filing deadline “lacks any plainly legitimate sweep”; or (3)
the filing deadline “is overbroad because a substantial number of its applications are
unconstitutional, judged in relation to its plainly legitimate sweep.” Id. (cleaned up)
(quoting Phelps-Roper v. Ricketts, 867 F.3d 883, 891–92 (8th Cir. 2017)).
3
A district court’s factual findings after a bench trial are reviewed for clear
error. Selective Ins. Co. of S.C. v. Sela, 11 F.4th 844, 848 (8th Cir. 2021). In its
opening brief, South Dakota does not argue the district court’s factual findings are
clearly erroneous. Accordingly, South Dakota has waived any argument challenging
the factual findings. See United States v. Cooper, 990 F.3d 576, 583 (8th Cir. 2021)
(“Ordinarily, a party’s failure to make an argument in its opening brief results in
waiver of that argument.”).
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1. First Amendment
We begin with the threshold question of whether South Dakota’s petition
filing deadline under South Dakota Codified Laws § 2-1-1.2 implicates the First
Amendment. Participation in the initiative process is created by state law, not the
United States Constitution. Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir.
1997). Accordingly, South Dakota has “considerable leeway to protect the integrity
and reliability of the initiative process . . . .” Buckley v. Am. Const. Law Found.,
Inc., 525 U.S. 182, 191 (1999). “Still, certain rules and requirements related to the
process may nevertheless implicate the Federal Constitution, including the First
Amendment.” Miller, 967 F.3d at 737 (collecting cases). We must therefore “guard
against undue hindrances to political conversations and the exchange of ideas.”
Buckley, 525 U.S. at 192.
“The circulation of an initiative petition of necessity involves both the
expression of a desire for political change and a discussion of the merits of the
proposed change.” Meyer, 486 U.S. at 421. “Thus, the circulation of a petition
involves the type of interactive communication concerning political change that is
appropriately described as ‘core political speech.’” Id. at 421–22. In Meyer, the
Supreme Court held Colorado’s statute criminalizing payment to petition circulators
“involves a limitation on political expression” that triggers the First Amendment’s
protections. Id. at 420. The Supreme Court reasoned that the prohibition on paying
petition circulators restricts political expression in two ways: First, it
limits the number of voices who will convey appellees’ message and
the hours they can speak and, therefore, limits the size of the audience
they can reach. Second, it makes it less likely that appellees will garner
the number of signatures necessary to place the matter on the ballot,
thus limiting their ability to make the matter the focus of statewide
discussion.
Id. at 422–23.
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Signing a petition is an expression of a political view, even if that view is as
simple as believing an issue should be voted on by the entire state. See Reed, 561
U.S. at 194–95. And signing a petition is “core political speech.” Nev. Comm’n on
Ethics v. Carrigan, 564 U.S. 117, 128 (2011) (citing Meyer, 486 U.S. at 421–22;
Reed, 561 U.S. at 195); see also Buckley, 525 U.S. at 186 (characterizing Meyer as
holding petition circulation is core political speech). Indeed, the First Amendment
is designed “to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.” Roth v. United States, 354 U.S.
476, 484 (1957); accord Lane v. Franks, 573 U.S. 228, 235–36 (2014).
The filing deadline under South Dakota Codified Laws § 2-1-1.2 implicates
these principles. SD Voice has sought and will continue to seek political change via
circulating petitions to amend South Dakota law. South Dakota’s filing deadline,
however, “limits the number of voices who will convey [the proposed] message”
during the year before the election. Meyer, 486 U.S. at 422–23. In fact, it effectively
prohibits circulating petitions during the year prior to the election. SD Voice put on
evidence explaining the benefit of having more time to secure signatures, including
more chances to speak with voters about issues and train circulators. South Dakota’s
filing deadlines also make “it less likely that [SD Voice] will garner the number of
signatures necessary to place [a] matter on the ballot, thus limiting [its] ability to
make [its political causes] the focus of statewide discussion.” Id. at 423. As SD
Voice aptly observes, a “person who circulates a petition within one year of the
election, or who signs such a petition, engages in a futile act.” And in Heidelberger’s
experience, voters pay more attention to political issues during an election year. This
is not surprising. It is common sense that cabining core political speech in the form
of petition circulation to a period no closer than a year before an election would
dilute the effectiveness of the speech. In these ways, the Supreme Court’s reasoning
that applied to the restriction in Meyer parallels the filing deadline here.
Eighth Circuit precedent also lends support to SD Voice’s concerns. In Miller,
we reasoned that Arkansas’s in-person signature requirement, which was enforced
during the pandemic, “affect[ed] the communication of ideas associated with the
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circulation of [a] petition.” 967 F.3d at 738. In particular, the law burdened the
plaintiffs’ “ability to express their position on a political matter by signing [an]
initiative petition.” Id. In Dobrovolny, by contrast, we considered whether a
Nebraska constitutional provision violated the First Amendment. 126 F.3d at 1112.
The challenged provision established the number of petition signatures necessary to
place an initiative on the state ballot: ten percent of Nebraska’s registered voters,
which was determined on the date of the filing deadline. Id. We held the plaintiffs’
“inability to know in advance the exact number of signatures required in order to
place their initiative measures on the ballot in no way restricted their ability to
circulate petitions or otherwise engage in political speech, and therefore the decision
in Meyer is inapplicable.” Id.Under South Dakota’s law, an individual cannot sign a petition in the year
immediately preceding a general election. Thus, the deadline burdens the “ability to
express [a] position on a political matter by signing [an] initiative petition.” Miller,
967 F.3d at 738. And unlike Dobrovolny, where the challenged law did not restrict
circulation of petitions, here South Dakota has banned all participation in the petition
process one year before the next election. See 126 F.3d at 1112–13 (distinguishing
Meyer by noting the unconstitutional Colorado statute outlawing payments to
petition circulators “limited the number of voices available to convey a particular
message, as well as the size of the audience that could be reached”).
South Dakota nonetheless claims its citizens are still “free to propose an
initiated measure of their choosing and to convey their message to all who will
listen.” South Dakota’s observation speaks to the degree of burden rather than the
existence of a burden. The Supreme Court has rejected the argument that a statute’s
burden on expression “is permissible because other avenues of expression remain
open,” reasoning a law that leaves open other avenues of communication does not
relieve the burden on protected political discourse. Meyer, 486 U.S. at 424. So too
here.
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The only other argument South Dakota raises regarding whether the deadline
implicates the First Amendment is evidence of successful petitions despite the filing
deadline. In support, South Dakota relies on Libertarian Party of Arkansas v.
Thurston, 962 F.3d 390 (8th Cir. 2020), a case involving Arkansas’s petition
requirements for new political parties. In that context, we explained “parties’ past
success or failure in a particular state under . . . prior requirements is relevant to
show the necessity or burdensomeness of the restrictions” that are being challenged.
Id. at 399. Although the record here shows there were still some successful petitions
after the one-year filing deadline was adopted, the record also shows the number of
petitions that made it onto the statewide ballot decreased from 2016 to 2020. On
this record and under Meyer and Miller, we agree with the district court that South
Dakota’s filing deadline under South Dakota Codified Laws § 2-1-1.2 implicates the
First Amendment.
2. Level of Scrutiny
Having established the filing deadline implicates the First Amendment, we
next consider the level of scrutiny. We do not apply strict scrutiny to every initiative
petition law that implicates the First Amendment. Instead, under circuit precedent,
we apply the Anderson/Burdick sliding standard.4 Miller, 967 F.3d at 739 (citing
Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001)). Under
this standard, “we weigh the character and magnitude of the burden the State’s rule
imposes on First Amendment rights against the interest the State contends justify
that burden, and consider the extent to which the State’s concerns make the burden
necessary.” Id. (cleaned up) (quoting Timmons v. Twin Cities Area New Party, 520
U.S. 351, 358 (1997)). If the filing deadline imposes a severe burden on the ability
to engage in political speech, strict scrutiny applies. Id. A severe burden is one that
goes “beyond the merely inconvenient.” Id. (quoting Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring in the judgment)). If
the burden is not severe, we review the law “to ensure it is reasonable,
4
See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504
U.S. 428 (1992).
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nondiscriminatory, and furthers an important regulatory interest.” Id. at 740 (citing
Timmons, 520 U.S. at 358).
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. Petition circulation, as a result, is effectively banned an entire year before
the general election. The deadline further makes it less likely that SD Voice will
secure the number of signatures necessary to place the matter on the ballot, thus
limiting the ability to advance statewide discussion on political issues. Cf.
Libertarian Party of Ark., 962 F.3d at 400 (noting, for third party candidates, that
“deadlines far before election day are problematic because of the general disinterest
of potential voters so far removed from elections”). Accordingly, we harbor doubt
that the burden on the ability to engage in political speech as a result of the deadline
is less than severe. But we need not decide this issue because we conclude the statute
fails under scrutiny for burdens that are less than severe. Cf. Dakotans for Health v.
Noem, 52 F.4th 381, 389 (8th Cir. 2022).
3. Scrutiny
Even if the burden on the ability to engage in political speech was less than
severe, we would review the deadline “to ensure it is reasonable, nondiscriminatory,
and furthers an important regulatory interest.” Miller, 967 F.3d at 740. South
Dakota argues its interests are sufficient to justify the restrictions. As best we can
tell, South Dakota offers three distinct interests: election integrity, administrative
efficiency, and the Legislature’s ability to respond to petitions.
We begin with election integrity. South Dakota’s “interest in protecting the
integrity of its initiative process” is not only an important interest, but a “paramount”
one. Miller, 967 F.3d at 740 (quoting Hoyle v. Priest, 265 F.3d 699, 704 (8th Cir.
2001)); see also Buckley, 525 U.S. at 187 (recognizing “there must be a substantial
regulation of elections if they are to be fair and honest”). So South Dakota’s interest
in election integrity cannot be disputed. The problem for South Dakota is that the
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district court found “[t]here is nothing in the record that even suggests that the one-
year requirement lends anything of value to the State.”
On appeal, South Dakota claims “the one-year filing deadline ensures [the
Secretary of State’s Office has] a sufficient amount of time to verify the signatures
on the petition.” It points to trial testimony from South Dakota’s Director of
Division of Elections Kea Warne. Warne was asked, “how does that one-year
deadline assist the secretary of state’s office in completing its duties?” Warne
responded:
So our state is one of the smallest states for the number of people we
have in the division of elections. And again, I kind of mentioned . . .
most of the duties that we have. There are multiple processes we go
through. And . . . after session, too, will be the implementation of new
laws. We have to change our programming in some of our systems.
We’re doing an upgrade on our registration file right now currently. It
takes a lot of time to test . . . . Just to get all of our duties done by [the]
end, meet all of the requirements leading up to a primary and general
election, there is [sic] a lot of deadlines that have to occur.
Warne was then asked, “Why is the longer deadline necessary for a ballot question
petition as opposed to a candidate petition?” She explained: “The ballot questions
have, you know, a lot more signature requirements . . . . [I]t’s just under 17,000 for
a[n] initiative or referred law, and it’s just under, I think, 34,000 for a constitutional
amendment.”
South Dakota has not tied these responsibilities to election integrity. The only
explanation South Dakota offers for its filing deadline one year before the general
election is the number of signatures it must review in addition to other legal
obligations. But the Secretary of State reviews a random sample of collected
signatures. See S.D. Codified Laws §§ 2-1-15 and 2-1-16; S.D. Admin. R.
5:02:08:00.05 (prescribing the “method for conducting the random sample” for
petitions). As Warne explained at trial, the random sample has been as low as 2.3%
in recent years. With such a small sample size, it is no wonder Warne also testified
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that South Dakota has validated “two referenda petitions . . . in two days each.”
South Dakota also reviewed all petitions submitted in 2017 within five months of
the filing deadline and reviewed all petitions submitted in 2015 within three months
of the filing deadline. On this record, South Dakota has failed to show the filing
deadlines further an important interest. See Miller, 967 F.3d at 740.
True, “states are not required to present elaborate, empirical verification of
the weightiness of their asserted justifications.” Id. (cleaned up) (quoting Timmons,
520 U.S. at 364). “They can respond to potential deficiencies in the electoral process
with foresight” so long as “the response is reasonable and does not significantly
impinge on constitutionally protected rights.” Id. (internal quotation marks omitted);
see also Jaeger, 241 F.3d at 616 (examining evidence presented in support of a
state’s interest). But South Dakota merely relies on a bare assertion of election
integrity rather than evidence or a reasonable response connected to the filing
deadline. Cf. Libertarian Party of Ark., 962 F.3d at 403; Calzone, 942 F.3d at 424.
South Dakota’s other asserted interests suffer from a similar problem. For
instance, South Dakota next offers administrative efficiency, which is a legitimate
interest. See Buckley, 525 U.S. at 187 (recognizing “there must be a substantial
regulation of elections . . . if some sort of order, rather than chaos, is to accompany
the democratic process”). South Dakota’s interest is especially noteworthy given its
staff of fourteen people. This small staff must comply with numerous deadlines and
responsibilities, including petition validation, training, updating publications,
meeting with the board of elections, and implementing new laws.
The district court, however, concluded a deadline of six months before a
general election is “more than adequate time to do the work that must be done.” The
district court noted South Dakota “has had no trouble complying with that deadline
for many years.” In support, the district court considered testimony that South
Dakota met its obligations under the prior filing deadline. South Dakota’s success
in meeting the prior deadlines should come as no surprise because the deadline to
certify ballot questions is twelve weeks before the general election—i.e., nine
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months after the filing deadline. See S.D. Codified Laws § 12-13-1. Yet the nine-
month gap between the general election and the filing deadline is unexplained.
Indeed, South Dakota has recently validated two referenda petitions “in two days
each.” Here, too, South Dakota has failed to show the filing deadlines further an
important regulatory interest. See Miller, 967 F.3d at 740.
Finally, South Dakota offers as a legitimate interest the Legislature’s ability
to respond to petitions. South Dakota characterizes such an interest as “legislators
[should] be able to plan and prepare for any measures that significantly impact[] the
state’s budget.” South Dakota offers no authority recognizing this interest.
Assuming, without deciding, the interest exists, the filing deadline does virtually
nothing to advance it.
The filing deadline is November, specifically “one year before the next
general election.” S.D. Codified Laws § 2-1-1.2. Under the district court’s
injunction, the deadline is six months before the general election in November. A
petition submitted as late as May—i.e., six months before the general election—
would be certified no later than twelve weeks before the November election. Id.§ 12-13-1. In November, if the voters approve a certified ballot question, the
corresponding law will go into effect in July of the following year. Id. § 2-1-12. But
before then, starting in January, the South Dakota Legislature begins its legislative
session. S.D. Const. art. III, §§ 6–7. During that legislative session, the Legislature
could consider potential ramifications of any laws approved by the voters but not yet
in effect.
In these ways, SD Voice correctly observes South Dakota “already has what
it says it needs: an intervening legislative session between a general election and the
date an initiated law becomes effective.” See Buckley, 525 U.S. at 196 (rejecting an
asserted interest as already “served” by a separate legal requirement); Meyer, 486
U.S. at 425–26 (rejecting an asserted interest as already “adequately protected” by
other means). South Dakota might prefer a second legislative session “to respond to
the proposed initiative measure before it is placed on the ballot,” but South Dakota
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did not present evidence of how a second session satisfies this interest. South
Dakota, having adopted the petition process, must satisfy the First Amendment. See
Reed, 561 U.S. at 195 (“The State, having chosen to tap the energy and the
legitimizing power of the democratic process, must accord the participants in that
process the First Amendment rights that attach to their roles.” (cleaned up)).
To summarize, South Dakota’s filing deadline of one year before a general
election “imposes a burden on political expression that the State has failed to
justify.” Buckley, 525 U.S. at 195 (quoting Meyer, 486 U.S. at 428). In other words,
South Dakota failed to provide evidence connecting the one-year deadline to its
asserted interests. Cf. Plyler v. Doe, 457 U.S. 202, 228–29 (1982) (assuming a state
interest was legitimate but noting the absence of evidence in the record in support).
We therefore find no error in the district court’s conclusion that the filing deadline
under South Dakota Codified Laws § 2-1-1.2 is unconstitutional under the First
Amendment.
B. Filing Deadline for Petitions to Amend the State Constitution
SD Voice’s First Amendment claim also took issue with the statutory
deadline, under South Dakota Codified Laws § 2-1-1.1, to submit petitions to amend
the state Constitution. The district court rejected this claim, holding the statute
survives exacting scrutiny. On appeal, SD Voice argues the district court should
have reached the same conclusion as it did for the filing deadline for petitions to
initiate State statutes.
Neither the district court nor South Dakota offers any legal basis for
distinguishing the deadlines to submit petitions to initiate state statutes from
petitions to amend the state Constitution. Nor do we discern one. The statutory
language, the proffered state interests, and the evidence are virtually identical for
both deadlines. Applying the same legal framework and record available for the
filing deadline under South Dakota Codified Laws § 2-1-1.2, we are left with no
choice but to conclude the filing deadline under South Dakota Codified Laws § 2-1-
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1.1 also violates the First Amendment. We thus reverse the district court’s holding
that the filing deadline in South Dakota Codified Laws § 2-1-1.1 is constitutional. 5
C. Scope of Relief
The district court permanently enjoined the South Dakota officials from
enforcing the filing deadline under South Dakota Codified Laws § 2-1-1.2. But it
also created a new deadline of six months before the general election. South Dakota
argues the district court erred by creating a new deadline. We agree.
Rather than enjoin the unconstitutional provision and allow the South Dakota
Legislature to decide how to respond, the district court took an “additional step” to
remedy a First Amendment violation. See Miller, 967 F.3d at 733 n.1. Yet,
prescribing a new filing deadline is outside the scope of the district court’s authority.
See Republican Party of Ark. v. Faulkner Cnty., 49 F.3d 1289, 1301 (8th Cir. 1995)
(“Cognizant of our role as a federal court, we do not purport to advise Arkansas on
the best means of rendering constitutional its election code: that decision rests with
the sound judgment of the Arkansas legislature.”). We thus remand with instructions
to modify the permanent injunction and remove the new filing deadline.
III. Conclusion
We affirm the district court’s holding that the filing deadline in South Dakota
Codified Laws § 2-1-1.2 violates the First Amendment, reverse the holding that the
filing deadline in South Dakota Codified Laws § 2-1-1.1 does not violate the First
Amendment, and remand with instructions to modify the permanent injunction in a
5
We note Article 23, Section 1 of the South Dakota Constitution requires the
text of the proposed constitutional amendment and the names and addresses of its
sponsors to be submitted a year before the general election. It is silent as to the
deadline for petition signatures. See S.D. Const. art. XXIII, § 1.
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manner not inconsistent with this opinion. We further deny the dueling motions to
strike party submissions.
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