South Dakota
Explaining the lawsuit against South Dakota’s abortion-rights ballot measure
BY: SETH TUPPER
PIERRE, S.D. (South Dakota Searchlight) – A new court fight over South Dakota’s abortion-rights ballot measure could hinge on a complicated answer to a simple question: Does a set of six-year-old petition requirements still exist?
The court fight started Thursday, when the Life Defense Fund filed a lawsuit in state court. The lawsuit challenges the legitimacy of a citizen-initiated Nov. 5 ballot question that would reinstate abortion rights. The Life Defense Fund is a ballot question committee organized to oppose the measure.
Dakotans for Health is the ballot question committee that supports the measure and gathered the petition signatures to put it on the ballot. Instead of filing a response in state court, Dakotans for Health asked a federal judge on Tuesday to intervene on its behalf. To understand why, it’s necessary to retrace a series of legislative and court battles dating to 2018.
That’s when the Republican-dominated Legislature enacted restrictions on the petition process that citizens use to place measures on the ballot. The restrictions were intended to prevent non-South Dakotans from circulating petitions, in part by requiring petitioners to provide information proving their South Dakota residency.
One year later, in 2019, some lawmakers said out-of-state petitioners were circumventing the law. So the Legislature repealed part of the 2018 law and replaced it with a new law. Among other things, the 2019 law required all petition circulators to publicly disclose personal information including their address, email and phone number.
A ballot question committee, SD Voice, and a liberal blogger, Cory Heidelberger, successfully sued to block the 2019 law. They said the law violated their First Amendment free speech rights, had a chilling effect on petition circulators, and imposed “unwarranted new restrictions on the ballot measure process, for the purpose of further consolidating power in South Dakota’s dominant political party.”
In 2020, legislators responded with another new law applying similar requirements, but only to paid petition circulators. Dakotans for Health successfully sued to block that law. A federal appellate judge in the case wrote, “While South Dakota has important interests in protecting the integrity of the ballot initiative process, it has no interest in enforcing overbroad restrictions that likely violate the Constitution.”
Both the 2019 and 2020 laws included a 30-day residency requirement for petition circulators. That specific requirement was challenged in yet another lawsuit, filed by the League of Women Voters. The league agreed to drop its narrower lawsuit when Dakotans for Health succeeded with its wider suit.
According to the Life Defense Fund, the end result of all that lawmaking and litigating is that the original 2018 law still stands. It’s still “good law,” the group claims, because none of the subsequent bills that sought to repeal or amend it are currently in force. Those bills were challenged by opponents and blocked by the courts.
The Life Defense Fund therefore asserts that the abortion-rights petitioners were obligated to comply with the 2018 law, which requires sworn statements including information proving the petitioners’ South Dakota residency. The Life Defense Fund says Dakotans for Health failed to obey that law, and “therefore the entire petition is disqualified.”
Dakotans for Health says the Life Defense Fund lawsuit is an illegal attempt to resurrect the 30-day residency requirement for petitioners and “flout” the related court decisions. That’s why Dakotans for Health is asking a federal judge to prevent any state court from enforcing the residency requirement.
There are other allegations in the Life Defense Fund lawsuit: petition circulators failed to provide a required handout to signers, some signatures were counted as valid even though they’d been crossed out on the petition, some signers didn’t list the county where they’re registered to vote, some signers were allegedly duped into thinking they were signing a petition about repealing the sales tax on groceries, and so on.
“This will be proven by witness testimony,” Sara Frankenstein, the attorney for the Life Defense Fund, told South Dakota Searchlight.
Dakotans for Health, represented by attorney Jim Leach, asserts that the Life Defense Fund’s other allegations are insufficient to achieve its aim of removing the abortion-rights measure from the ballot. The petition circulator residency questions are “critical to the possible success” of the lawsuit, Dakotans for Health says in its federal court memorandum.
Nancy Turbak Berry, a Democratic former legislator who leads a coalition advocating for the ballot measure, panned the Life Defense Fund’s legal strategy.
“It is a press release masquerading as a lawsuit, designed solely to allow the opponents of reproductive freedom to peddle more inflammatory lies,” she said.
Dakotans for Health filed its ballot petition in May with about 55,000 signatures. The Secretary of State’s Office validated the petition after sampling the signatures and estimating that 46,098 of them were from South Dakota registered voters — more than the 35,017 needed to qualify for the ballot.
Abortions are currently banned in South Dakota, except to “preserve the life of the pregnant female.” The ballot measure would legalize abortions in the first trimester of pregnancy but allow the state to impose limited regulations in the second trimester and a ban in the third trimester, with exceptions for the life and health of the mother.
South Dakota Searchlight’s Joshua Haiar contributed to this report.
RAPID CITY, S.D. (KOTA) -A cold front moving through South Dakota will bring strong winds Thursday, with gusts up to 50 mph expected in northwestern parts of the state.
Wind advisories have been issued for Buffalo, Lemmon, Spearfish and areas near Rapid City. The strongest winds are expected in northwestern South Dakota, north and east of the Black Hills, up into the Buffalo area.
Wind timing and intensity
Winds are expected to build during overnight hours into Thursday morning and continue through midday. The strongest winds are forecast around 10 to 11 a.m. Thursday.
Winds will begin calming around 5 to 6 p.m., with breezy conditions continuing around 8 p.m.
The east side of the state could see some 50 mph wind gusts.
Rain and thunderstorms are possible
Showers are moving into the area, with heavy rain in northeastern Wyoming. Sheridan and Gillette could see heavy activity with possible thunderstorms.
Rapid City and western South Dakota will initially see dry conditions as upslope flow squeezes moisture out of the northern and western slopes of the Black Hills. Showers will move through the rest of Thursday, especially north of Interstate 90.
Some areas could receive about a half-inch of rain, though model data shows variations. Additional rain is expected Sunday, with temperatures about 10 degrees below average.
Front stalls across the region
The front is expected to stall over Ekalaka, Alzada, and Belle Fourche, and into central Meade County, including Union Center, and into Ziebach County.
Temperature outlook
Morning lows on Thursday will drop to 40 degrees in Gillette and 51 degrees in Rapid City. Temperatures will fall below average across much of the region after the cold front moves through.
Highs on Thursday will reach the 70s in Pine Ridge, Kadoka, Sheridan, and Belle Fourche. Temperatures will rise back to the 70s and 80s on Friday.
Another cooldown is expected Saturday with the next front. Temperatures in the hills could drop into the 50s, with highs of 56 in some areas and 62 in Deadwood. Spearfish and Hot Springs will see temperatures similar to the plains. Phillip and Pine Ridge will warm into the 80s by Friday.
Rapid City will hit 77 Tuesday and 83 Wednesday as high pressure moves into the area and temperatures stay moderate through the end of the week.
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All nine tribes located in South Dakota are unifying in their call to return the public, federal lands in the Black Hills to tribal entities.
Each tribe passed a resolution calling on Congress to act. Treaty rights mandate the Black Hills belong to tribes, although that treaty was broken long ago.
Organizers said the most important detail in this new legislative push is the focus on public, federal lands. Put simply, places where people do not live.
Valeriah Big Eagle is the director of He Sapa initiatives for Rapid City-based nonprofit NDN Collective. She said this not about private homes in the Black Hills.
“That’s the myth, that’s the misunderstanding,” Big Eagle said. “When they’re talking about landback in the Black Hills and we’re talking about the federal public land, essentially that is the lands that nobody is living on. It’s the federal, public lands so we can protect it from extractive activities.”
Regardless of outcome, advocates say the inclusion of all South Dakota’s tribes is a historic statement of tribal unity.
Joseph Brings Plenty is a tribal council representative from Eagle Butte. He said tribes have government-signed and guaranteed rights.
“That’s something that needs to be remembered — the treaties still exist,” Brings Plenty said. “That’s why we stand on this. For the United States to uphold their end of the bargain.”
Brings Plenty said it’s a chance for native peoples to have a meaningful say in the management of the Black Hills. With that, Brings Plenty said healing can happen.
“That’s a step forward, a positive step forward,” Brings Plenty said. “The Black Hills are not for sale. I mean, it’s not just in a Lakota or Indian sense. We all want clean water, we all want the air to be clear, we all want housing and grandchildren. We all want a life. The more and more, as is inevitable, the cultures mesh, I think this is all important. Why lose it?”
This comes on the heels of a mining effort near the Black Hills sacred site of Pe’Sla, where the company behind it withdrew after a legal battle and widespread opposition from the Indigenous community.
For the first time in the state’s history, South Dakotans will vote in a runoff election July 28 to choose a candidate for governor. Republicans Toby Doeden and Gov. Larry Rhoden were the top two candidates in the June 2 primary election, but neither received 35% of the vote, which triggered the runoff.
Here are answers to some commonly asked questions about the runoff election:
If I didn’t vote in the June 2 Republican primary, may I still vote in the runoff?
Yes. Registered Republicans, regardless of whether they voted on June 2, may vote in the runoff election.
What about the general election in the fall?
Yes. You are not required to vote in primary elections to cast your ballot in general elections.
How long do I have to change my voter registration?
Voters have until July 13 to change or register their voting affiliation. You can find the form to do so on the South Dakota Secretary of State’s website, where you will print the form and submit it to your county auditor.
South Dakota voter guide
What South Dakotans need to know about voting in statewide elections, and who and what are on the ballot.
Who pays for the runoff?
South Dakota state law says that counties are responsible for paying all statewide general election fees. That includes the cost of ballots, poll workers and election equipment. The South Dakota Secretary of State’s office reimburses counties for the cost of post-election audits and administers the system that allows overseas voters, including military personnel, to vote and request ballots.
How do I know where I vote?
You can view your polling place for the July 28 election on the South Dakota Secretary of State’s voter information portal. You will need to provide your full name and either your ZIP code or birthday.
Is this the first runoff for governor?
Yes. The state’s first-ever runoff for governor is happening this year because of a law passed in 1985. Codified law 12-6-51.1 says if one candidate does not receive 35% of the vote in a primary, a runoff election between the top two candidates will take place eight weeks later to determine who advances to the general election. Before that law was passed, if a candidate did not receive 35% of the vote, the winner was decided at state party conventions.
Former Aberdeen Legislator Crafted Law That’s Led To South Dakota’s First Gubernatorial Runoff | Aberdeen Insider His blog can be found online at sodakgovs.com, and he added a Wednesday, June 3 entry about the first gubernatorial runoff election in state history.
If I live in Sioux Falls, may I vote in runoff elections for mayor and governor at the same time?
Yes, but for a limited amount of time, and only at specific locations. The runoff election for Sioux Falls mayor will take place on June 23, and the runoff election for governor will take place on July 28. They are separately administered elections.
But absentee voting for governor opens June 12 and absentee voting for mayor opens June 16. Sioux Falls residents may absentee vote for both races at either the Minnehaha or Lincoln County auditor’s offices. That means that between June 16 and June 22 – the day before the Sioux Falls mayoral election – registered Republicans can visit either office and vote absentee for both elections on the same day. Absentee voting is not available on election day.
Sioux Falls Simplified, The Dakota Scout and Sioux Falls Live are hosting a public mayoral debate on June 12 between candidates Christine Erickson and Jamie Smith. The debate will take place at 4 p.m. at Carnegie Town Hall in Sioux Falls and is free and open to all members of the public. Megan Raposa, founder of Sioux Falls Simplified, said of the debate: “The goal is to discuss specific policy questions based on input from community stakeholders.”
Start here: Sioux Falls 101
Want to get involved in the decisions that shape Sioux Falls? Start here to get a local government crash course.
South Dakota News Watch is an independent nonprofit. Read, donate and subscribe for free at sdnewswatch.org. Contact reporter/Report for America corps member Molly Wetsch: 605-531-7382/molly.wetsch@sdnewswatch.org.
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