Abortion rights measure likely to appear on ballot, but lawsuit could affect election results

South Dakotans will likely get to vote on abortion rights in November, but the recent reinstatement of a legal challenge by abortion opponents could upend the results – either before or after the election.

Life Defense Fund sued Dakotans for Health earlier this year. The former is accusing the latter’s petition circulators of a range of illegal tactics in their effort to secure the signatures needed to put a measure on the ballot that would enshrine abortion rights in the South Dakota Constitution.

Circuit Judge John Pekas dismissed the anti-abortion group’s case last month, saying the lawsuit should have but did not name Secretary of State Monae Johnson as a defendant. Pekas did not rule on the merits of the petition circulation arguments. But the state Supreme Court overruled Pekas on Friday and sent the case back to Minnehaha County.

Now, Life Defense Fund has moved to add Johnson as a defendant.

If Pekas approves the addition, Johnson will have up to 30 days to respond. Like any elected official in South Dakota, she would be defended in court by Attorney General Marty Jackley.

Jackley spokesman Tony Mangan confirmed that the Office of the Attorney General would only represent Johnson in a limited capacity. State law on disputes over petition signatures includes this clause on the attorney general’s role: “Any appearance by the attorney general at a challenge under this section shall be limited to the process of signature verification by the Office of the Secretary of State.”

Life Defense Fund’s arguments go beyond that, however. The group says unlawful actions during the petition-gathering process should nullify a vote to pass the amendment.

The addition of a new defendant and the legal arguments surrounding such assertions are unlikely to be resolved before Aug. 13. That’s the deadline for the secretary of state to certify copies of all ballot questions to county auditors.

Since Johnson has already certified the abortion amendment to appear on the ballot, the amendment will likely be there unless the case is resolved in the Life Defense Fund’s favor in less than six business days.

“I don’t know if it is realistic anymore to have the case resolved by August 13th, but that would have been the ideal,” said Sara Frankenstein, a Rapid City lawyer who represents Life Defense Fund.

Frankenstein also said there is precedent for legal challenges overturning election results. She pointed to 2020’s Amendment A, which legalized both recreational and medical marijuana. A circuit judge overturned the amendment after the election because, by addressing medical cannabis and recreational cannabis, its verbiage violated the state Constitution’s single-subject rule. The state Supreme Court affirmed that decision.

Separately in 2020, voters passed an initiated measure to legalize medical marijuana, setting the stage for the medical marijuana program now operating in the state.

Life Defense Fund’s abortion measure lawsuit alleges Dakotans For Health’s petition circulators left petition sheets unattended and misled signers about the amendment’s impact on abortions after the first trimester, among other accusations.

Another set of allegations revolves around a 2018 state law that sought to prevent out-of-state residents from circulating ballot petitions in South Dakota. Among other things, the law required petition circulators to file a sworn statement and documentation to prove their residency.

Dakotans for Health says the 2018 law was invalidated by a series of federal court decisions that struck down that law’s restrictions.

Dakotans for Health has requested an injunction in federal court that would stop the Life Defense Fund’s lawsuit in state court. A federal judge last month declined to intervene “at this time,” saying she would wait for further state court proceedings.

Johnson validated the abortion-rights measure in May by using a sample to estimate that 46,098 signatures were from registered South Dakota voters, surpassing the required 35,017.

The lawsuit argues that Johnson is obligated to invalidate what it describes as seven classes of “objectionable signatures,” ranging from residency violations to outright fraud, and that there are enough such signatures to disqualify the measure from the ballot.

Rick Weiland of Dakotans for Health said in a text message that the latest moves in the case represent the abortion opponents’ “ongoing and desperate effort to deny the people of our state their right to vote on this matter because the voters think South Dakota’s abortion ban is too radical.”

This article originally appeared on Sioux Falls Argus Leader: Abortion rights measure likely to appear on ballot, but lawsuit could affect election results