An equal justice statue sits outside the doors of the Minnehaha County Courthouse in Sioux Falls. (John Hult/South Dakota Searchlight)
The free speech zones designated for political petitioning on Minnehaha County property survived nine days before being halted by a federal judge.
A temporary restraining order inked late Thursday afternoon by U.S. District Judge Roberto Lange blocked the county’s rules for petitioners the day after a nonprofit group filed a lawsuit challenging their constitutionality.
Dakotans for Health, a health care advocacy network and ballot question committee, filed its lawsuit on Wednesday. The complaint alleges that the new rules would hamper the First Amendment rights of South Dakotans.
The policy would limit political speech by blocking petition activity on 99.3% of the previously accessible outdoor area. The two rectangular areas established for circulators are inadequate, the group contends.
Lange’s temporary restraining order says that the policy could harm the petitioners’ rights in a manner that cannot be remedied by monetary damages at a future date.
That’s one of the elements needed for a judge to issue a restraining order before a defendant, in this case Minnehaha County, can respond to legal allegations.
“The new policy generally makes it much less likely that those entering or exiting the Minnehaha County buildings will engage at all with petition circulators,” Lange wrote.
Additionally, the lawsuit argues that a requirement for all petition circulators and political speakers to pre-register with the auditor’s office infringes on the right to anonymous speech and leaves them vulnerable to harassment.
The registration and geographic restrictions in the new policy would be unlikely to survive a legal challenge, Lange wrote, though some parts of the rules, such as barring petitioners from following people into the building, might pass constitutional muster.
Pre-registration and area restrictions “seem to do more to deter and frustrate petition circulating at Minnehaha County buildings than addressing ‘unnecessary disruptions or inconvenience’ to county operations or to those visiting county buildings,” Lange wrote.
Commission unanimously approved
The new policy for petitioning in the state’s most populous county was originally passed by the Minnehaha County Commission on a 5-0 vote May 2.
The policy update was informed by suggestions from Auditor Leah Anderson. The current policy does not designate an area for petition circulators and protestors, she told commissioners, and had minimal rules on conduct.
“While we appreciate the citizens and those who wish to take an active role in government decisions, at all levels, the county building must accommodate many people every day without any unnecessary delay or inconvenience,” Anderson said during the May 2 meeting.
Anderson said she’d consulted with other departments and the state’s attorney. Deputy State’s Attorney Eric Bogue reassured commissioners that the policy did not restrain First Amendment rights.
There was little public comment on the measure on the day of the vote. Commissioner Dean Karsky asked Anderson during the proposal’s hearing, however, if the rule would mean petition circulators would be “confined to that area.”
“The idea would be that they would be in that designated area. Now, I’m not going to watch the parking lot all day,” Anderson said. “We need to make the building as accessible as possible, without having three of four people standing right by the door, grabbing people as they come in and out.”
Commissioner Joe Kippley said he felt that the restrictions fell within the bounds of government entities’ rights to restrict speech without infringing on the First Amendment.
“From a legal perspective, restraining political speech is generally frowned upon,” Kippley said. “This feels like reasonable time, place and manner restrictions.”
Kippley then asked Anderson what would happen if more people attended an event than could fit in the designated space.
“For larger events like that, they do have to get a permit,” Anderson said.
Rules target longstanding petition-gathering location
The Minnehaha County Courthouse and Administration Building in Sioux Falls are popular locations for collecting signatures to place a measure on the ballot.
Dakotans for Health is currently gathering signatures for petitions focused on restoring abortion rights and eliminating the state sales tax on food. Initiated measures and referendums require about 17,500 signatures from registered voters, and initiated constitutional amendments require about 35,000 signatures.
Dakotans for Health said in an emailed statement that Federal District Judge Roberto Lange’s ruling “recognizes the importance of preserving the right to petition the government for a redress of grievances.”
“South Dakota has a longstanding tradition of circulating petitions and collecting signatures to enact laws and constitutional changes through the citizen initiative process. These new rules severely obstruct that activity and undermine direct democracy and free speech,” said Rick Weiland, cofounder of Dakotans for Health.
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