South Dakota News Watch-The deadline for printing ballots for the November 2024 election presents a daunting timetable for an anti-abortion group seeking to keep an abortion rights amendment from being decided at the polls.
But Life Defense Fund now says as part of its lawsuit that even if Amendment G makes the Nov. 5 ballot, the South Dakota Secretary of State’s office could make a public announcement that “no votes for or against the measure will be counted or have any impact.”
That’s part of an amended complaint filed in state circuit court in Minnehaha County after the South Dakota Supreme Court on Aug. 2 reversed the lower court’s dismissal of the lawsuit. Life Defense Fund contends that Amendment G’s sponsor, Dakotans for Health, violated state laws with improper petition circulation.
At the same time, the Supreme Court denied Life Defense Fund’s request to expedite the matter in circuit court. That makes it highly unlikely that the matter will be resolved by Aug. 13, the deadline for the secretary of state to certify copies of all ballot questions to county auditors for ballots to be printed.
The suggestion that Amendment G appear on the ballot but voters be instructed to disregard it would be an extremely rare occurrence in the state, if not unprecedented, said Michael Card, emeritus professor of political science at the University of South Dakota.
He noted that there have been scenarios in other states where candidates died after ballots were printed, but the votes still counted and some of those candidates even ended up winning.
Sara Frankenstein, the Rapid City lawyer representing Life Defense Fund, told News Watch that the anti-abortion group is trying to meet the Aug. 13 deadline but has looked at other options if that’s not possible.
“It’s not unprecedented for measures to be disqualified after they are printed on the ballot,” said Frankenstein. “For instance, the South Dakota marijuana measure, Amendment A, was voted on and passed (in 2020), yet the court still disqualified it.”
Gov. Kristi Noem’s administration challenged that recreational marijuana effort, saying it violated the state’s requirement that constitutional amendments deal with just one subject. That argument prevailed in a 4-1 decision at the South Dakota Supreme Court.
That’s different from a court telling the secretary of state to proclaim that a constitutional amendment on the ballot will not be counted, said Rick Weiland, co-founder of Dakotans for Health, a grassroots organization that pushes for progressive policy through petition efforts.
“There’s no provision in South Dakota law that allows that,” Weiland told News Watch. “They’ve been saying all along that this (Aug. 13) deadline is a hard stop, and now they’re saying, ‘Well, don’t accept anything we said about that. The court can just dictate to the secretary of state not to count the votes.’ It just looks like another in a series of desperate measures from them.”
Secretary of State Monae Johnson and Deputy Secretary of State Tom Deadrick declined to comment on the legal and logistical challenges involved in the scenario proposed by Life Defense Fund.
Case heads back to circuit court
The Supreme Court reversal gives Life Defense Fund another chance to plead its case in front of Circuit Court Judge John Pekas, this time with specific allegations of petition misconduct on the table. The group had sought to remove Pekas from the proceedings, but the Supreme Court decision rejected that argument.
On July 15, Pekas ruled in favor of Dakotans for Health by granting a motion to dismiss the lawsuit. Rather than examine itemized charges in the complaint, the judge noted the importance of following election law and questioned why the secretary of state’s office wasn’t named as a party in the lawsuit.
The amended complaint from Life Defense Fund now lists Secretary of State Johnson as a defendant, a nod to Dakotans for Health’s argument that the state’s top elections official is an indispensable party in the proceeding. That indicates a party whose presence and participation in court are required in order for the lawsuit to proceed.
Frankenstein told News Watch that the group’s complaint is not focused on Johnson’s certification of Amendment G but rather on the actions of Dakotans for Health organizers and petitioners in gathering signatures to make the ballot.
Life Defense Fund, led by Republican state legislator Jon Hansen and longtime anti-abortion advocate Leslee Unruh, seeks a ruling that the amendment is “disqualified, invalid, and/or has not been validly submitted pursuant to South Dakota law.”
Life Defense Fund also seeks an expedited scheduling order and for Dakotans for Health organizers and petition circulators to be banned from “performing any work for any ballot question committee for a period of four years.”
Amendment set for Nov. 5 ballot
South Dakota is currently under a 2005 state trigger law activated in June 2022 when the Supreme Court overturned Roe v. Wade and left it up to states to determine their stance on abortion rights.
South Dakota’s law makes it a Class 6 felony for anyone “who administers to any pregnant female or prescribes or procures for any pregnant female” a means for an abortion, except to save the life of the mother.
If passed, Amendment G would prevent the state from regulating abortions during the first trimester, following a similar framework as Roe. During the second trimester, the state could regulate the abortion decision, but any regulation must be reasonably related to the physical health of the mother. During the third trimester, abortion could be prohibited except if it is necessary to preserve the life or health of the pregnant woman, according to her physician.
On May 16, the secretary of state’s office certified the measure for the Nov. 5 ballot, saying that a random sample showed 46,098 of the 54,281 submitted signatures were deemed valid, well over the threshold of 35,017.
Nearly a month later, Life Defense Fund filed a complaint in state circuit court asking that the amendment be disqualified.
This story was produced by South Dakota News Watch, an independent, nonprofit news organization. Read more in-depth stories at sdnewswatch.org and sign up for an email every few days to get stories as soon as they’re published. Contact Stu Whitney at stu.whitney@sdnewswatch.org.