Judge: South Dakota to pay lawyer fees after fundraising ban

January 14, 2020 GMT

SIOUX FALLS, S.D. (AP) — South Dakota taxpayers will pay nearly $115,000 in lawyer fees to plaintiffs who challenged an initiated measure that prohibited ballot question committees from accepting out-of-state money.

The measure, passed by voters in 2018, was pushed by legislators unhappy with what they saw as outside interference in putting political questions on the ballot. However, U.S. District Judge Charles Kornmann struck the measure down last Thursday as unconstitutional, the Argus Leader reported.

Kornmann said taxpayers should pay the attorney fees, the same taxpayers who violated the U.S. Constitution when they authorized the measure.

“Neither the state Legislature nor the majority of voters are allowed to pass laws that violate the Constitution without risking the possibility that those oppressed by the measure will expend attorney’s fees challenging it, and, upon success, be entitled to reimbursement,” Kornmann wrote.

Last year, Kornmann ruled that the measure violated the U.S. Constitution’s First Amendment right to free speech, which includes political speech. Non-residents and businesses faced potential civil or criminal sanctions for violating the measure, which would have gone into effect on July 1.

The measure was challenged in two separate lawsuits, the first filed by South Dakota Voice and Cory Heidelberger, a liberal activist from Aberdeen. Plaintiffs in the second lawsuit included the South Dakota Newspaper Association, Retailers Association, and Broadcasters Association.

The state of South Dakota argued that it should not be forced to pay attorney fees because voters passed the measure. Kornmann subsequently rejected that theory. He noted that then Attorney General Marty Jackley, whose office is in charge of educating voters on ballot issues, cautioned that the measure would likely generate a challenge on constitutional grounds. That warning appeared on the ballot.

The coalition of groups headed by the South Dakota Newspaper Association hired Jackley to challenge the law after he left office in 2019.

In a statement, Jackley said protecting free speech is a priority for the state Newspaper Association and the Broadcast Association.

“We are pleased with Judge Kornmann’s well-reasoned decisions and believe this now more than ever provides the South Dakota Legislature with the opportunity to improve the transparency and reporting of campaign finance in South Dakota,” he said.