AP NEWS

Judge strikes down South Dakota out-of-state fundraising ban

May 9, 2019

ABERDEEN, S.D. (AP) — South Dakota’s ban on out-of-state money for ballot question campaigns is unconstitutional, a federal judge ruled Thursday in blocking state officials from enforcing the new law.

U.S. District Judge Charles Kornmann ruled that the first-in-the-nation measure approved by South Dakota voters in November violates First Amendment political speech rights and also violates the Commerce Clause by interfering with interstate transfer of money to ballot question campaigns in South Dakota.

The law is scheduled to take effect July 1, but the judge blocked state officials from enforcing it.

In his ruling, Kornmann said the evidence “demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy.”

Former House Speaker Mark Mickelson sponsored the initiative. He said it was necessary to preserve the ballot measure process for state residents and predicted that it would survive legal challenges.

Out-of-state donors put more than $10 million into campaigns for or against South Dakota ballot questions during the 2016 election cycle.

The new law prohibits contributions to ballot question committees from nonresidents, out-of-state political committees and entities that haven’t filed with the secretary of state’s office for the preceding four years.

When the measure passed in November, Josh Altic, ballot measures project director at online political encyclopedia Ballotpedia, said in an email he’s confident the South Dakota measure would be the first statewide prohibition on out-of-state contributions to ballot question campaigns.

“Today’s ruling is a big win for free speech. Government cannot ban speech because it dislikes who is speaking. South Dakotans have the right to hear messages from all Americans,” said legal director Allen Dickerson of the Institute for Free Speech , a Virginia-based organization that along with former South Dakota Attorney General Marty Jackley represented a coalition of trade associations, an advocacy group and a former South Dakota resident now living in Florida in challenging the law.

The South Dakota Newspaper Association, South Dakota Retailers Association, South Dakota Broadcasters Association and Americans for Prosperity were among those challenging the measure. The law also was challenged by Aberdeen political blogger Cory Heidelberger and his ballot-question committee, SD Voice. The ruling applies to both cases.

Executive director David Bordewyk of the South Dakota Newspaper Association said his organization joined the lawsuit because of its concern that the measure violated the First Amendment.

“It’s not something we took lightly, especially considering that 56 percent of the voters in last year’s election approved” the measure, Bordewyk said in a statement to the Yankton Daily Press & Dakotan. He said the judge “made it clear today that (the measure) is not constitutional.”

The state can appeal. Timothy Bormann, chief of staff for Republican South Dakota Attorney General Jason Ravnsborg, who was elected in November, said in an email to The Associated Press on Thursday that the attorney general’s office is reading the decision and “examining the avenues available to our office that best coincide with protecting the best interests of the people and the State of South Dakota.”