Supporters of South Dakota’s traditional initiative-and-referendum process worry state lawmakers may pass a revised law now that a federal judge has declared the law passed last session unconstitutional.

Last week, Judge Charles Kornmann ruled that House Bill 1094 violates the First Amendment. The group South Dakota Voice, led by Cory Heidelberger, filed a federal lawsuit to prevent the bill from taking effect.

Heidelberger said he finds it ironic that lawmakers also passed a bill last year to require civic classes in South Dakota high schools.

“This is what civics is about, is getting up off your can and actually participating in public discourse and elections, and the making of your own laws,” Kornmann said. “Initiative and referendum is the apotheosis of civic engagement.”

In 2018, the same judge declared another law unconstitutional, that would have restricted out-of-state contributions to ballot issues. Heidelberger noted the state could appeal the latest ruling, or use the new session to pass a new law to change the state’s initiative and referendum process.

The law, set to take affect in July, would have required people who circulate petitions to wear badges with ID numbers, and put personal information into a public directory, including their home addresses and phone numbers. Heidelberger said the law could have created a chilling effect for anyone collecting signatures who’s confronted by someone who opposes the petition.

“And Judge Kornmann agreed flat-out that opens the door to harassment,” Kornmann said. “And we brought evidence of that — we brought a circulator from previous ballot questions who had harassment on the street when he was circulating, and he said, ‘That was without people knowing my address.’ “

South Dakota is among 26 states with an initiative and referendum process, and was the first state to allow citizens to enact laws through the process starting in 1898. In 2017, Republican lawmakers used emergency powers to repeal a voter-approved anti-corruption referendum. Some said their constituents didn’t understand what they were voting for.

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