Dakotans for Health v. Kristi Noem ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2428
___________________________
Dakotans for Health
Plaintiff - Appellee
v.
Kristi Noem, South Dakota Governor, in her official capacity;
Mark Vargo, South Dakota Attorney General, in his official capacity;
Steve Barnett, South Dakota Secretary of State, in his official capacity
Defendants - Appellants
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South Dakota Biotech Association
Amicus on Behalf of Appellants
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Appeal from United States District Court
for the District of South Dakota
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Submitted: March 17, 2022
Filed: November 1, 2022
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Before GRASZ, STRAS, and KOBES, Circuit Judges.
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GRASZ, Circuit Judge.
This appeal requires us to evaluate the constitutionality of a South Dakota law
imposing new obligations on persons compensated to circulate initiative petitions.
The district court 1 preliminarily enjoined South Dakota officials from enforcing
these requirements. We affirm.
I. Background
Article III, § 1 of the South Dakota Constitution provides: “The legislative
power of the state shall be vested in the Legislature . . . . However, the people
expressly reserve to themselves the right to propose measures which shall be
submitted to a vote of the electors of the state . . . .” In other words, the South Dakota
Constitution protects the right of South Dakota voters to legislate through ballot
initiatives. S.D. Const. art. III, § 1. Likewise, the South Dakota Constitution
provides voters the right to propose constitutional amendments by initiative. See
S.D. Const. art. XXIII, § 1. To qualify for the ballot, initiative petitions proposing a
constitutional amendment 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.” Id.
Within constitutional bounds, the procedures governing the initiative process
are controlled by the South Dakota legislature. See S.D. Codified Laws, ch. 2-1. In
2020, the South Dakota legislature passed, and the governor signed into law, Senate
Bill 180 (“SB 180”), part of which imposed additional requirements for paid petition
circulators in the state and specified penalties for failure to comply with those
requirements. This case concerns the constitutionality of those additional
requirements.
SB 180 has four relevant provisions. First, it compels paid ballot petition
circulators to disclose their name, residential address, email address, phone number,
1
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
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government-issued identification, voter registration state, petition sponsor name, and
sex offender status prior to circulating any petition for a ballot measure. S.D.
Codified Laws § 2-1-1.5. Second, it requires these disclosures to be “available upon
request” in a publicly available directory, while the petitions are still being circulated
and prior to commencement of the signature verification process. Id. §§ 2-1-1.5 and
2-1-1.6. Third, it voids all signatures gathered by the paid circulator if any
information is false or if the registration form is incomplete. Id. § 2-1-1.5. Fourth,
it requires paid circulators and petition sponsors to update the information within
seven days of any change. Id.
The underlying dispute arose when Dakotans for Health (“DFH”), a South
Dakota ballot question committee, 2 sought to place a constitutional amendment
measure on South Dakota’s 2022 general election ballot. To get on the ballot, DFH
would need to submit nearly 34,000 valid signatures to the South Dakota Secretary
of State. When DFH filed its complaint, it employed a paid petition circulator, Pam
Cole, to help it obtain these signatures. And DFH said it expected to employ more
circulators in the future to obtain the signatures necessary to qualify the proposed
constitutional amendment for the ballot. But DFH believes SB 180 will chill paid
petition circulators from working, thereby hindering DFH from obtaining the
signatures to place the constitutional amendment measure on the ballot. Indeed,
Cole testified that while she would continue her work circulating petitions, she
believed other paid petition circulators would “be unwilling to disclose” the
information required by the statute, and as a result would stop working rather than
comply with SB 180’s disclosure requirements.
DFH sued the relevant South Dakota government officials (collectively,
“Appellants” or “South Dakota”) in federal court and moved to preliminarily enjoin
enforcement of SB 180, arguing many of SB 180’s requirements violate First
Amendment free speech protections. DFH cited the fact that the South Dakota
2
A ballot question committee is an entity organized to place a question on the
ballot for a vote of the people.
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legislature previously passed House Bill 1094 (“HB 1094”), which imposed public
disclosure requirements like those in SB 180 for all ballot petition circulators.
Before HB 1094 was adopted, the bill’s sponsor was quoted in a news story as
stating, “professional out-of-state petition circulators . . . are trying to bring their
California and Massachusetts liberal agendas” to South Dakota. He was also quoted
as stating the bill would keep away one particular individual’s “out-of-state liberal
allies.” After a district court enjoined HB 1094 as violating the First Amendment,
SD Voice v. Noem, 432 F. Supp. 3d 991, 1003 (D.S.D. 2020), the same legislator
then sponsored SB 180. The only relevant difference between HB 1094 and SB 180
is that whereas HB 1094 applied to all petition circulators, SB 180 applies only to
paid petition circulators.
In response to the suit, Appellants countered by arguing that DFH lacked
standing to sue and that the preliminary injunction factors did not weigh in favor of
injunctive relief. The district court concluded DFH did have standing to sue and
held SB 180 likely violated the First Amendment by not being substantially related
to South Dakota’s interests in election integrity and preventing election fraud. The
district court then preliminarily enjoined enforcement of SB 180.
II. Analysis
On appeal, the Appellants again argue DFH does not have standing to
challenge SB 180. Alternatively, they argue the preliminary injunction was
unwarranted and improper and thus the district court abused its discretion by
entering it. We disagree on both counts.
A. Standing
We review whether a party has standing de novo. Dalton v. NPC Int’l, Inc.,
932 F.3d 693, 695 (8th Cir. 2019). “To establish standing ‘[t]he plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’”
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Young America’s Found. v. Kaler, 14 F.4th 879, 887 (8th Cir. 2021) (alteration in
original) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)); accord Animal
Legal Def. Fund v. Vaught, 8 F.4th 714, 718 (8th Cir. 2021). South Dakota does not
dispute the second element but argues DFH fails to show an injury in fact and
redressability.
There are two types of injuries conferring standing for prospective First
Amendment relief. See Missourians for Fiscal Accountability v. Klahr, 830 F.3d
789, 794 (8th Cir. 2016). The first occurs when a plaintiff alleges “an intention to
engage in a course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecution thereunder.”
Id. (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). The second occurs
when a plaintiff self-censors. Id. (citing 281 Care Comm. v. Arneson, 638 F.3d 621,
627 (8th Cir. 2011)). Self-censoring occurs when a plaintiff alleges it “would like
to engage in arguably protected speech, but that [it] is chilled from doing so by the
existence of the statute.” Arneson, 638 F.3d at 627.
The burden is on DFH, as the plaintiff, to establish standing. Animal Legal
Def. Fund, 8 F.4th at 718. When assessing standing at the preliminary injunction
stage, this circuit has assumed the complaint’s allegations are true and viewed them
in the light most favorable to the plaintiff. See, e.g., Jones v. Jegley, 947 F.3d 1100,
1103 (8th Cir. 2020); Rodgers v. Bryant, 942 F.3d 451, 454 (8th Cir. 2019).
The First Amendment standing inquiry is “lenient” and “forgiving.” Turtle
Island Foods, SPC v. Thompson, 992 F.3d 694, 699−700 (8th Cir. 2021). This
leniency “manifests itself most commonly in the doctrine’s first element: injury-in-
fact.” Klahr, 830 F.3d at 794 (quoting Cooksey v. Futrell, 721 F.3d 226, 235 (4th
Cir. 2013)). And when, as here, “threatened enforcement effort implicates First
Amendment rights, the [standing] inquiry tilts dramatically toward a finding of
standing.” Id. (quoting Ariz. Right to Life Pol. Action Comm. v. Bayless, 320 F.3d
1002, 1006 (9th Cir. 2003)).
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Since an evidentiary hearing was waived and because we are only at the
preliminary injunction stage, the record here is not extensively developed. In
addition to the complaint, DFH relies on the declaration of Cole, a paid petition
circulator who worked for DFH, and sworn in-court testimony of Miller Cannizzaro
from the HB 1094 litigation.
Cole testified that though she complied with SB 180’s disclosure requirements
while working for DFH, she believed—based on twenty years’ experience in South
Dakota politics—many paid circulators will be unwilling to comply with SB 180.
She explained DFH’s inability to recruit paid circulators will make it much harder
for DFH to obtain signatures.
Cannizzaro testified about his efforts in 2015 to circulate a ballot initiative to
control payday lending. Cannizzaro explained that during his efforts to collect
signatures, people from an organized group tried to stalk him and hinder his ability
to collect signatures. According to Cannizzaro, this group followed him around
Rapid City, shouted at him, and physically obstructed him from doing his job. This
terrified Cannizzaro and caused him to purchase and carry a gun for protection. It
also caused him to seek a protection order against the manager of the group, which
the court granted. When asked if he would be willing to work as a circulator if the
law required him to first provide personal information for use in a public directory,
Cannizzaro said he would not “go near anything remotely controversial” because “it
was bad enough [to be] followed around town. [He would not] want them to know
where [he] lived.”
Notwithstanding this evidence, Appellants argue DFH lacks standing to
challenge SB 180. After all, DFH is a ballot question committee, and the provisions
of the new statute are directed primarily at petition circulators. While this argument
has superficial appeal, a look at South Dakota’s statutory scheme for regulating
initiative petitions reveals that South Dakota regulates petition circulators and ballot
question committees in such a way that their interests are highly intertwined, if not
inseparable.
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The purpose of a ballot question committee is to place a question on the ballot,
and this is done only through petition circulators. For starters, section 2-1-1.7 of the
South Dakota Code ties the registration of paid circulators to ballot question
committees. The circulator must pay a fee to the Secretary of State for each ballot
question committee “represented by the paid circulator.” S.D. Codified Laws § 2-
1-1.7. In fact, the relationship is so interconnected that, for all practical purposes,
initiative petitions cannot be circulated in South Dakota without a ballot question
committee. This is because South Dakota law also requires formation of a ballot
question committee, through a statement of organization, “not later than fifteen days
after the date” when $500 is spent or raised. Id. § 12-27-3. A violation of this
requirement is a Class 2 misdemeanor. Id. In South Dakota, ballot question
committees and circulators, then, are interrelated like an army and its soldiers.
Further, the penalties for violating the law impact both ballot question
committees and circulators at the same time.
If any . . . person or entity compensated by . . . a ballot question
committee for purposes of petition circulation . . . commits multiple
violations of the law regarding petition circulation, residency of a
petition circulator, or campaign finance regulation, the . . . person, or
entity, including any person serving as a member of the board or as an
officer of the entity, is prohibited from being a . . . petition circulator,
and from performing any work for any ballot question committee for a
period of four years . . . .
Id. § 2-1-21.
Considering DFH’s complaint, the Cole declaration, and the plain terms of the
statute, we conclude DFH is faced with a concrete, particularized, and actual injury
from SB 180. This is because the ability of DFH to reach its audience and gather
sufficient signatures is directly impacted by SB 180. The evidence suggests the
statute will have the effect of limiting the pool of circulators who will carry DFH’s
message, thus reducing the size of its audience, and making it less likely it will gather
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the necessary signatures. See Meyer v Grant, 486 U.S. 414, 422−23 (1988). The
statute requires circulators to publicly disclose sensitive personal information if they
want to work for DFH or exercise their right to circulate petitions while being
compensated for their time or expenses. Id. at 423 (“We can take judicial notice of
the fact that it is often more difficult to get people to work without compensation
than it is to get them to work for pay.”). The statute also directly forbids a person
from working for ballot question committees for four years if he or she commits
“multiple” violations, such as failing to publicly disclose his or her home address,
email address, phone number, prior home address (if the current residence is less
than one year), and sex offender status. See S.D. Codified Laws §§ 2-1-1.5 and
2-1-21. And if he or she fails to update this information within seven days of any
change, that person also violates the statute. See id. § 2-1-1.5.
Section 2-1-1.5 invalidates the signature of every voter on every petition
submitted by a paid circulator on behalf of a ballot question committee if the
circulator: (a) fails to submit the required personal information prior to gathering
any signatures; (b) leaves out his or her email address, phone number, or any other
required detail; or (c) supplies incorrect information. Through these provisions, SB
180 affects the number of persons willing to circulate petitions for DFH, the number
of persons eligible to circulate for DFH, and thus the ability of DFH to reach its
audience and successfully gather enough signatures to place a question on the ballot.
Therefore, DFH has alleged injury in fact sufficient for purposes of standing.
Since this injury is redressable through the injunctive relief it seeks, we reject the
Appellants’ argument that DFH lacks standing.
B. Preliminary Injunction
When reviewing the issuance of a preliminary injunction, “fact findings are
reviewed for clear error, legal conclusions are reviewed de novo, and the ‘ultimate
decision to grant the injunction’ is reviewed for abuse of discretion.” Kodiak Oil &
Gas (USA) Inc. v. Burr, 932 F.3d 1125, 1133 (8th Cir. 2019) (quoting
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Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d
750, 754 (8th Cir. 2018)).
Since DFH seeks to preliminarily enjoin a duly enacted state statute, it must
show more than a “fair chance of prevailing” on the merits. Planned Parenthood
Minn., N. D., S.D. v. Rounds, 530 F.3d 724, 730 (8th Cir. 2008) (en banc). To obtain
a preliminary injunction, DFH must establish: “(1) ‘[it] is likely to succeed on the
merits’; (2) ‘[it] is likely to suffer irreparable harm in the absence of preliminary
relief’; (3) ‘the balance of equities tips in its favor’; and (4) ‘an injunction is in the
public interest.’” MPAY Inc. v. Erie Custom Comp. Applications, Inc., 970 F.3d
1010, 1015 (8th Cir. 2020) (quoting Wise v. Dep’t of Transp., 943 F.3d 1161, 1165
(8th Cir. 2019)).
1. Merits
The First Amendment, as incorporated by the Fourteenth Amendment,
prohibits states from “abridging the freedom of speech.” This protection applies to
SB 180 because petition circulation is “core political speech where First Amendment
protection is at its zenith.” SD Voice v. Noem, 987 F.3d 1186, 1191 (8th Cir. 2021)
(cleaned up) (quoting Buckley v. Am. Const. Law Found., Inc., 525 U.S. 182, 186−87
(1999)). Because DFH brings a facial First Amendment challenge to SB 180, it
“may be invalidated as overbroad if a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Ams.
for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021) (quoting United States
v. Stevens, 559 U.S. 460, 473 (2010)).
To determine the appropriate level of scrutiny for a speech regulation, the
court must consider “the nature of the regulation.” Calzone v. Summers, 942 F.3d
415, 423 (8th Cir. 2019) (en banc). On its surface SB 180 is structured as a
disclosure law. A statute compelling disclosure of information to the government
related to political activity is typically subject to “exacting scrutiny.” Bonta, 141 S.
Ct. at 2383. Yet DFH argues we should apply “strict scrutiny” instead because this
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law burdens core political speech. While this argument may have merit, 3 we need
not decide it because we conclude the statute fails under exacting scrutiny.
Exacting scrutiny is just what its name says—exacting. It is just short of strict
scrutiny. First, exacting scrutiny requires “a substantial relation between the
disclosure requirement and a sufficiently important governmental interest.” Id. at
2383 (quoting Doe v. Reed, 561 U.S. 186, 196 (2010)). “To withstand this scrutiny,
the strength of the governmental interest must reflect the seriousness of the actual
burden on First Amendment rights.” Id. (quoting Reed, 561 U.S. at 196). But this
is just part of the analysis. Though “exacting scrutiny does not require that
disclosure regimes be the least restrictive means of achieving their ends, it does
require that they be narrowly tailored to the government’s asserted interest.” Id.South Dakota’s asserted interests here—prevention of corruption and
protection of the integrity of the ballot initiative process—are strong. “[A] state’s
interest in protecting the integrity of its initiative processes [is] ‘paramount.’” Miller
v. Thurston, 967 F.3d 727, 740 (8th Cir. 2020) (quoting Hoyle v. Priest, 265 F.3d
3“To determine whether a rule is a disclosure requirement, or something more,
[this court looks] to see the effect of the provision.” Missourians for Fiscal
Accountability v. Klahr, 892 F.3d 944, 949 (8th Cir. 2018) (quoting Catholic
Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir. 2014)); accord
Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 875 (8th Cir.
2012) (en banc) (“Allowing states to sidestep strict scrutiny by simply placing a
‘disclosure’ label on laws . . . risks transforming First Amendment jurisprudence
into a legislative labeling exercise.”). By its terms, SB 180 imposes disclosure and
payment obligations before speech occurs, see S.D. Codified Laws § 2-1-1.5,
conditions speech on one’s willingness to provide sensitive personal information,
see id., and, in some cases, forbids future speech for four years, id. § 2-1-21. In
addition, compliance determines whether the efforts of the petition circulator to
achieve a political outcome are successful: “If a paid circulator fails to file the
registration required by this section before circulating a petition, or if the registration
is incomplete, or if any statement included in the paid circulator’s certification is
determined to be false, any signatures collected by the paid circulator are void and
may not be counted.” Id. § 2-1-1.5.
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699, 704 (8th Cir. 2001)). This interest includes not only combatting fraud and
corruption, but also preventing mistakes like duplicate signatures and signatures
from ineligible voters. Id. This “interest also extends more generally to promoting
transparency and accountability in the electoral process . . . .” Reed, 561 U.S. at 198.
And while the district court was skeptical the Appellants put forth an adequate
showing to establish that these asserted interests were not pretextual, we note that
South Dakota was “not required to present ‘elaborate, empirical verification of the
weightiness of [its] asserted justifications.’” Miller, 967 F.3d at 740 (quoting
Timmons v. Twin Cities Area New Party, 520 U.S. 349, 364 (8th Cir. 1997)). Thus,
assuming without deciding South Dakota’s asserted interests are not pretextual, we
will proceed to evaluate the fit between them.
The Appellants argue SB 180’s requirements are substantially related to its
important interests in election integrity. They correctly note that “states have
‘considerable leeway to protect the integrity and reliability of the initiative process.’”
Miller, 967 F.3d at 737 (quoting Buckley, 525 U.S. at 191). Having up-to-date
address information helps the state contact paid circulators if there is an issue, which
could have alleviated issues in the prior litigation. This echoes the Supreme Court’s
acknowledgment that “[p]ublic disclosure can help cure the inadequacies of the
verification and canvassing process.” Reed, 561 U.S. at 198. And as the Court noted
and as seen here, “the secretary’s verification and canvassing will not catch all
invalid signatures . . . .” Id. These disclosures likewise promote transparency by
letting the public know who is circulating petitions.
The Appellants further argue the burdens imposed by SB 180 on speech are
not great. They characterize as a de minimis burden the requirements that paid
circulators certify they are at least eighteen years old and provide their home address,
email address, phone number, state of their driver’s license, state of voter
registration, and the name of petition sponsor. Thus, in the Appellants’ view, these
reasonable disclosure requirements are substantially related to its important interests.
A closer look reveals the law is not narrowly tailored to serve these interests and
cannot survive exacting scrutiny.
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First, the asserted interests in election integrity are general in nature, but the
statute does not apply generally—it applies only to those who are paid. In Meyer,
the Court held Colorado’s ban on paying petition circulators violated the First
Amendment. 486, U.S. at 428. While South Dakota has not banned paying
circulators, it has instead subjected them to a set of disclosure requirements not
applicable to volunteer circulators. It does so on the ground that paid circulators
pose a greater threat to the integrity of the petition process. The Supreme Court has
stated, however, that “absent evidence to the contrary,” it is “not prepared to assume
that a professional circulator—whose qualifications for similar future assignments
may well depend on a reputation for competence and integrity—is any more likely
to accept false signatures than a volunteer who is motivated entirely by an interest
in having the proposition placed on the ballot.” Buckley, 525 U.S. at 203−04
(quoting Meyer, 486 U.S. at 426). In Buckley, based on the lack of evidence, the
Court concluded disclosure requirements that applied only to paid circulators failed
exacting scrutiny. Id. at 204.
The challenged statute effectively thumbs its nose at both Meyer and Buckley.
We agree with the district court that, at this stage of the proceeding, the “State has
not shown that paid petition circulators create a greater risk of fraud than
volunteers.” Evidence of past instances where signatures on petitions gathered by
paid circulators were invalidated does not, by itself, show corruption particular to
paid circulators or demonstrate a greater need for regulation of paid circulators than
for circulation by volunteers. Like the district court, we conclude, “The State has
not shown that tighter restrictions on paid circulators [in the form of SB 180] have a
substantial relationship to a sufficiently important governmental interest.”
The second flaw in Appellants’ argument relates to the timing of the required
disclosure. The statute does not just require the disclosed information be maintained
by the ballot committee or even by the Secretary of State in case it is needed during
the signature verification process. Rather, it is required to be available for public
viewing upon request—and not just during the verification process that occurs after
circulation is completed, but prior to the time any circulation occurs. See S.D.
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Codified Laws § 2-1-1.6. This is a recipe for harassment, especially given the
requirement for public disclosure of circulators’ phone numbers, residential
addresses, and email addresses.
The Supreme Court has addressed similar concerns in the ballot initiative
context before, and it has come down on the side of protecting the personal
information of circulators during the circulation process. See Buckley, 525 U.S. at198−200. In Buckley, the Court contrasted disclosure of personal contact
information in circulator affidavits submitted after circulation of a petition with the
compelled disclosure of a circulator’s name “at the time a circulator is soliciting
signatures . . . .” Id. at 198−99. The Court invalidated a name badge requirement
since it “compels personal name identification at the precise moment when the
circulator’s interest in anonymity is greatest.” Id. at 199. See also Calzone, 942
F.3d at 424−25 (“As the Supreme Court has recognized, speakers ordinarily have
the right to keep their identities private.”). While a public directory of circulator
names differs from a name badge, we note the Buckley decision was made after
considering evidence of “reluctance of potential circulators to face recrimination and
retaliation that bearers of petitions on ‘volatile’ issues sometimes encounter . . . .”
Buckley, 525 U.S. at 198. This concern applies with equal force, if not more, to a
public directory.
Taken together, the pre-circulation disclosure requirements in section 2-1-1.5
are intrusive and burdensome. As such they present a severe burden on speech. We
agree with the district court that the pre-circulation disclosure and certification of
personal information, as well as the seven-day update requirement, are not
substantially related to the State’s interests. While upfront disclosure of petition
sponsorship and petition funding may serve an interest in transparency, disclosing a
circulator’s phone number, home address, and email address prior to the signature
verification process are not substantially related to South Dakota’s interests.
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More importantly, for purposes of exacting scrutiny, while the State’s
interests are strong, they do not stand in isolation to justify any regulatory scheme it
puts forward. Rather, the statute itself must be narrowly tailored to meet these
asserted interests. Bonta, 141 S. Ct. at 2383. “[A] substantial relation to an
important interest is not enough to save a disclosure regime that is insufficiently
tailored.” Id. at 2384. “Narrow tailoring is crucial where First Amendment activity
is chilled—even if indirectly—‘[b]ecause First Amendment freedoms need
breathing space to survive.’” Id. (quoting NAACP v. Button, 371 U.S. 415, 433
(1963)).
Several of the aforementioned flaws show “[t]here is a dramatic mismatch . . .
between the interest[s] that the [State] seeks to promote and the disclosure regime
that [it] has implemented in service to that end.” Id. at 2386. Indeed, SB 180’s
requirement that paid circulators disclose their sexual offender status is not narrowly
tailored to any state interest in election integrity. And South Dakota presents no
evidence paid circulators are more likely to be sex offenders than volunteer
circulators. The State may well have public safety interests related to disclosure of
sex offender status, but those interests were not asserted here. Likewise, the
requirement that any change in a circulator’s phone number, home address, or e-mail
address be updated within seven days is not narrowly tailored to serve the State’s
interests in election integrity. While having up-to-date contact information would
facilitate communication with circulators who may be engaging in abusive practices,
the provision applies only to paid circulators and the penalty for having an outdated
email address, for example, while still having an accurate phone number and mailing
address, is invalidation of all voter signatures gathered by the circulator.
But even some of the more seemingly innocuous requirements suffer from a
mismatch in fit. Being forced to publicly disclose one’s phone number, email
address, and residential address in order to exercise the right to circulate a petition—
even as a paid circulator—is chilling in today’s world. The risks of public disclosure
“are heightened in the 21st century and seem to grow with each passing year, as
‘anyone with access to a computer can compile a wealth of information about’
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anyone else, including such sensitive details as a person’s home address or the school
attended by his children.” Bonta, 141 S. Ct. at 2388 (alteration in original) (quoting
Reed, 561 U.S. at 208 (Alito, J., concurring)). The personal information required by
SB 180—upon penalty of criminal sanctions as well as the invalidation of all
signatures on a petition—may subject circulators of controversial petitions to
harassment or even risk of personal harm. The required disclosure of this
information before circulation even commences is not narrowly tailored to South
Dakota’s interests. The information is not needed for verification of the petition
until after circulation is completed. And if the purpose is to inform voters that the
circulator is an “out-of-state interloper,” disclosing a state of residence would
suffice.
All of this leads us to conclude DFH is likely to succeed in showing SB 180
is facially invalid as overbroad in that it violates the First Amendment in a substantial
number of its applications. It discriminates against paid circulators for reasons
unrelated to legitimate state interests, reduces the pool of circulators available to
DFH, and restricts the speech of DFH by sweeping too broadly in its requirements.
Put another way, SB 180 is not narrowly tailored to serve South Dakota’s important
interests.
2. Remaining Preliminary Injunction Factors
We next turn to the issue of irreparable harm. To show irreparable harm, “a
party must show that the harm is certain and great and of such imminence that there
is a clear and present need for equitable relief.” Richland/Wilkin Joint Powers Auth.
v. U.S. Army Corps of Eng’rs, 826 F.3d 1030, 1037 (8th Cir. 2016) (quoting
Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011)). We
agree with the district court that DFH has shown irreparable harm. DFH cannot sue
for money damages. And as discussed above, SB 180 affects core political speech
by impacting the number of persons willing to circulate petitions for DFH, the
number of persons eligible to circulate for DFH, and thus the ability of DFH to reach
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its audience and successfully gather enough signatures to place a question on the
ballot. This harm is irreparable absent injunctive relief.
Finally, we conclude the balance of harms and the public interest also favor
DFH. While South Dakota has important interests in protecting the integrity of the
ballot initiative process, it has no interest in enforcing overbroad restrictions that
likely violate the Constitution.
C. Severability
A “preliminary injunction ‘must be narrowly tailored . . . to remedy only the
specific harms shown by the plaintiffs, rather than to enjoin all possible breaches of
the law.’” St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1022−23 (8th Cir. 2015)
(omission in original) (quoting Price v. City of Stockton, 390 F.3d 1105, 1117 (9th
Cir. 2004)). Relatedly, South Dakota’s Supreme Court says a statute should be
severed “if the remainder can stand by itself and if it appears that the Legislature
would have intended the remainder to take effect without the invalidated section.”
Currey v. Currey, 650 N.W.2d 273, 278 (S.D. 2002) (cleaned up) (quoting Simpson
v. Tobin, 367 N.W.2d 757, 768 (S.D. 1985)).
In addition to its regulation of paid circulators, SB 180 requires that a petition
sponsor, like DFH, provide a list to the Secretary of State of each person acting as a
paid circulator along with the compensation rate. See S.D. Codified Laws § 2-1-1.5.
It is not entirely clear whether this requirement applies pre-circulation or at some
later time. However, since it also requires petition sponsors to update this
information within seven days of any change, the requirement apparently applies for
at least some time (if not at all times) prior to completion of the circulation process.
DFH challenged the entirety of SB 180 and the district court enjoined SB 180
in its entirety. However, on appeal from the entry of the preliminary injunction,
neither party developed arguments in any meaningful sense either as to the validity
of the petition sponsor disclosure provisions, standing separately, or as to their
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severability from the remainder of SB 180. We therefore decline to second guess
the scope of the preliminary injunction, and we leave it to the district court to
determine in any future proceedings whether these portions of SB 180 can survive
scrutiny and whether they are otherwise severable.
III. Conclusion
We find DFH has satisfied the requirements for issuance of a preliminary
injunction and that the district court did not abuse its discretion in entering a
preliminary injunction against SB 180.
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