Abortion ballot measure challenge on course for late September trial

Life Defense Fund attorney Sara Frankenstein readies her case against against Dakotans for Health's abortion rights ballot measure in Sioux Falls on July 15, 2024. (Joshua Haiar/South Dakota Searchlight)

SIOUX FALLS — A lawsuit against South Dakota’s abortion-rights ballot question won’t end before voting begins, according to rulings issued Tuesday.

A Minnehaha County judge declined to dismiss the litigation, with a trial set to begin Sept. 23, three days after early voting starts.

The abortion rights measure, Amendment G , will be on the Nov. 5 general election ballot regardless of the outcome. That’s because the case wasn’t decided by Aug. 13, the deadline to certify copies of all ballot questions to county auditors. By then, South Dakota Secretary of State Monae Johnson’s office had reviewed petition signatures for Amendment G and certified it for inclusion on the ballot.

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The seven-day trial in the lawsuit, which challenges the validity of those petition signatures, could affirm the measure’s place on the ballot or invalidate it. An invalidation of the measure would negate the votes cast for and against it.

Life Defense Fund, an anti-abortion organization led by Leslee Unruh and Dell Rapids Republican Rep. Jon Hansen, sued the amendment’s sponsor Dakotans for Health in June, saying the group ran afoul of several provisions of state law on petitions.

Dakotans for Health had hoped to see Judge John Pekas toss the case a second time after the South Dakota Supreme Court overturned his initial dismissal of the lawsuit.

Dakotans for Health: Lawsuit aims to interfere with rights of voters

Dakotans for Health lawyer James Leach, of Rapid City, argued Tuesday morning that a trial on a ballot measure this close to the election amounts to election interference and has the potential to damage voter confidence in an era when some citizens are already convinced that the system is corrupt.

Courts, he said, “should not contribute to that perception.”

South Dakota secretary of state now a defendant in abortion rights case

“They’re asking for something I hope makes a little shudder run through you, which is to declare that the ballot measure is invalid, and that no one’s vote should count,” Leach said.

The trial is set to begin Sept. 23. That would not leave enough time for his side to appeal a loss to the state Supreme Court before ballots are cast, which he said would leave South Dakotans in the lurch as to whether their votes would count.

He also said there’s no precedent for such a ruling so close to an election. No local court in the country has ever invalidated a ballot measure after ballots have been printed, he claimed.

In court filings, Life Defense Fund cited several cases on ballot question challenges, including one in which the Hawaii Supreme Court upended a ballot question a few weeks before an election. But Leach said that situation is different, in that the supreme court in Hawaii made the final ruling.

Here, Leach said, there would be an opportunity to appeal to the South Dakota Supreme Court, but it’s unrealistic to expect the high court would be able to offer a ruling by Nov. 5 that would give voters confidence in the validity of their vote on abortion.

Life Defense Fund: Challenge proper to protect integrity of ballot initiatives

Sarah Frankenstein, however, who represents Life Defense Fund, said there is plenty of precedent on ballot question challenges, including from the South Dakota Supreme Court. In 2021, after the 2020 election, the justices overturned a voter-backed constitutional amendment legalizing both recreational and medical marijuana because, they decided, it ran counter to a constitutional amendment restricting ballot measures to a single issue.

Explaining the lawsuit against South Dakota’s abortion-rights ballot measure

Medical marijuana is legal in South Dakota thanks to a separate ballot initiative that also passed in 2020.

In the pot case, Frankenstein argued, the Supreme Court noted that ballot question challenges could come either before or after an election, even as its ruling on the cannabis issue came after the election.

Frankenstein accused Dakotans for Health of engaging in “gamesmanship” by attempting to block the release of evidence and repeatedly arguing for dismissal.

“They want to run out the clock so they can say, ‘Now it’s too close to the election, we can’t do anything,’” Frankenstein said.

With regard to election integrity and voter confidence, Frankenstein said Dakotans For Health is standing in the way by preventing Life Defense Fund from challenging the validity of signatures.

If laws are violated to get an amendment on the ballot, she argued, the courts have a responsibility to step in.

“The Supreme Court in our state and in other states have ruled that the courts can weigh in on elections,” Frankenstein said.

Judge: Case can proceed

Pekas said he needed to focus on the motions at hand, in spite of the weighty rhetoric on democracy. Listening to Leach, he said, made him feel like Atlas with the world on his shoulders, “as though the election will go spinning into the ether” if he doesn’t toss the case.

He denied the motion to dismiss, noting that the state Supreme Court had returned the case with the intention of creating a record after his earlier dismissal , which did not consider the merits of the arguments.

Pekas also ordered that some of the petitioners Life Defense Fund is deposing in the case produce emails from Dakotans for Health outlining their training. But he ruled in favor of Dakotans for Health on the issue of text messages. Life Defense Fund had requested all text communications between the petitioners and Dakotans For Health since Jan. 1, 2022.

Leach argued that the text records amount to a “classic fishing expedition” and said there would be First Amendment implications.

Pekas didn’t rule on the First Amendment arguments, but did agree to block the text message request.

“I believe that would be overly burdensome,” Pekas said.

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