January 16, 1989

The Honorable Joyce Hazeltine 
Secretary of State 
State Capitol 
Pierre, SD 57501

Official Opinion No. 88-50

Statute prohibiting paid circulators

Dear Secretary of State Hazeltine:

You have requested an official opinion from this Office in regard to the following factual situation:

FACTS: 

Senate Bill 234, Chapter 23 of the 1988 Session Laws, now codified as SDCL § § 2-1-13 and 2-1-14, prescribing requirements for circulators of initiative and referendum petitions, was signed by the Governor on March 2, 1988, and went into effect immediately. 

Subsequently, the United States Supreme Court on June 6, 1988, rendered a decision in a Colorado case invalidating a statute prohibiting compensating circulators of petitions. 

SB 234 provides that every circulator of a petition under SDCL 2-1 shall be of the "constitutionally prescribed age or older, a resident and a registered voter of the state of South Dakota," in addition to prohibiting compensating petition circulators.

Based upon the above facts, you have asked the following questions:

QUESTIONS: 

1.   Does the Supreme Court decision in the Colorado case render the prohibition of payment to petition circulators in SB 234 invalid? 

2.   If your answer to question #1 is "Yes", do the balance of the requirements for petition circulators under SDCL 2-1 as prescribed in SB  234 apply? 

3.   If the answer to question #2 is "Yes", does that same provision apply to any other petitions circulated under the laws of South Dakota, and, if so, to which petition circulators would it apply?

IN RE QUESTION NO. 1:

As a preliminary matter, SDCL 2-1-13 states the following: 

Every circulator of a petition shall be of the constitutionally prescribed age or older, and a resident and a registered voter of the state of South Dakota. Any circulator circulating petitions under the provisions of this chapter may not be hired or compensated, directly or indirectly, for circulating petitions. Any circulator may be paid for his expenses incident to his circulation of a petition, such as meals, travel and lodging.

As a matter of comparison and contrast, the Colorado statute provides the following: 

Any person, corporation, or association of persons who directly or indirectly pays to or receives from or agrees to pay to or receive from any other person, corporation, or association of persons any money or other thing of value in consideration of or as an inducement to the circulation of an initiative or referendum petition or in consideration of or as an inducement  to the signing of any such petition commits a class 5 felony and shall be punished as provided in section 18-1-105, C. R. S. (1973).

Colo. Rev. Stat. section 1-40-110 (1980).

As a practical matter, a ruling by the United States Supreme Court pertaining to a particular situation is given general application around the nation to like or similar situations. This has been recognized by the South Dakota Legislature in SDCL 1-1A-1, which provides that any state statute that lies contrary to the provisions of the United States Constitution as determined by one of several courts, including the United States Supreme Court, "is void within the jurisdiction of the state of South Dakota." Thus, the United States Supreme Court ruling on the constitutionality of the Colorado statute prohibiting paid circulation of initiative or referendum petitions has application to the second sentence of SDCL 2-1-13.

The case of Meyer et al. v. Grant et al. is the case to which you refer. Concluding its in-depth discussion of the facts and applicable law of the case, the Supreme Court held as follows: 

'(L)egislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment.' [Citation omitted]. That principle applies equally to 'the discussion of political policy generally or advocacy of the passage or defeat of legislation.' [Citation omitted]. The Colorado statute prohibiting the  payment of petition circulators imposes a burden on political expression that the State has failed to justify.

Id. Thus, the prohibition in SDCL 2-1-13 against paid circulation of the initiative or referendum petitions is invalidated by the Supreme Court holding. The answer to your first question is, "Yes".

IN RE QUESTION NO. 2:

The Supreme Court's examination of the Colorado law dealt specifically with paid petition circulators; the court did not examine other state laws otherwise restricting petition circulators. (Unlike the South Dakota provision, the Colorado law dealt only with paid circulators.) Consequently, that portion of our state statute prohibiting paid circulators has been rendered unconstitutional by implication, but the remainder of our statute has not.

Constitutional law principles state that a statute is deemed constitutional unless and until shown otherwise. "Enactments of the legislature should be upheld unless they are clearly and unmistakably unconstitutional. [Citation omitted.]" People in the Interest of T.L.J., 303 N.W.2d 800, 808 (S.D. 1981). Consequently, the provisions of SDCL 2-1-13, other than that portion dealing with paid circulators, retain a presumption of constitutional validity. The next question is whether constitutional invalidity of part of a statute  renders the entire statute unconstitutional. The answer is that if an unconstitutional "piece" of a statute can be severed from the remainder of the statute, the remainder retains its constitutional status. 

Unconstitutional provisions of a statute may be extracted and the remainder left intact. [Citation omitted.] The 'doctrine of separability' requires this court to uphold the remaining sections of a statute if they can stand by themselves and if it appears that the legislature would have intended the remainder to take effect without the invalidated section. [Citation omitted.]

Simpson v. Tobin, 367 N.W.2d 757,768 (S.D. 1985). From a legal standpoint, the remaining provisions of SDCL 2-1-13 stand by themselves and, thus, are deemed constitutionally sound unless and until proven otherwise.

An examination of the Supreme Court's opinion in Meyer v. Grant shows that the court was unable to find compelling state justification for restrictions on paid petition circulation. It was the Court's reasoning that any citizen who wishes to express his or her political views via the initiative or referendum process should be able to acquire assistance as necessary--including hired assistance -- as a means of that expression. I believe, however, that the remaining requirements within SDCL 2-1-13 meet the Supreme Court's "compelling state interest" test necessary to remain constitutionally valid.

Art. VII, §  2 of the South Dakota Constitution requires that a voter be eighteen years of age or older, meet state residency requirements and meet  state registration requirements. The section refers to such qualified individuals as "electors."

Art. III, §  1 authorizes the initiative and referendum processes and states that no more than five percent of the "qualified electors" of the state are required to initiate or refer a measure. Beyond that, however, the State Constitution is silent regarding initiative and referendum petition circulation. In that circumstance, the State Legislature may "fill in the details." State ex rel. Richards v. Burkhart, 44 S.D. 285, 183 N.W. 870 (1921). In response, the Legislature has enacted SDCL Ch. 2-1. SDCL 2-1-6 requires that an individual be a "qualified voter" in order to sign an initiative or referendum petition.

I find it difficult to believe that the United States Supreme Court would not uphold South Dakota's voter registration requirements or, for that matter, initiative and referendum petition signature requirements as valid within the court's view of a compelling state interest. It appears to me, then, to be equally clear that an individual circulating an initiative or referendum petition should meet the same minimal requirements as those who are signing such a petition. Logic would dictate that a petition circulator retain an electoral status at least equal to those who sign a petition.

Further, an individual who circulates a petition must take a circulation oath, sign that oath and its accompanying affidavit, and have the oath and  affidavit notarized. SDCL 2-1-10. The South Dakota Supreme Court has approved this procedure in Baker v. Jackson, 372 N.W.2d 142 (1985). It is apparent that the initiative and referendum statutes place a higher duty on those who circulate such petitions than on those who merely sign them. Consequently, I cannot imagine that a circulator could be allowed to hold lesser electoral qualifications than are required of a signer.

Though the Supreme Court's decision in Meyer does not address qualifications for petition circulators other than the Colorado provision, the Court does mention other aspects of the Colorado initiative and referendum petition circulation law. It notes that the Colorado law requires a petition circulator to be a registered voter and to verify, in a manner similar to that in South Dakota, that each person who signed the petition is a registered voter. The Supreme Court's passing mention of the other Colorado laws without further comment leads me to believe that my assessment of South Dakota's law is accurate.

The answer to your second question is, "Yes," the remaining provisions of SDCL 2-1-13 are presumed constitutional until shown otherwise and, further, will be deemed constitutional if ever so examined.

IN RE QUESTION NO. 3:

To answer this question, let me restate the first line of the quoted Supreme Court statement from Meyer, as found on page 3 of this Opinion. "'[L]egislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment."' That statement applies to our entire elective process, not simply initiatives and referendums. The unconstitutional status of restrictions on individual efforts towards election or defeat of political candidates existed before the Supreme Court extended it to initiative and referendum petitions in Meyer. Since petitions are circulated on behalf of both candidates and issues, the Supreme Court's holding applies to all election petitions and all petition circulators.

My answer to your third question is that the holding in Meyer applies to all petitions and to all petition circulators.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General