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Constitutional Question, Not Election Contest: Plaintiffs Show No Voting Irregularities to Justify Challenge to Marijuana Amendment

Sheriff Kevin Thom and South Dakota Highway Patrol Colonel Rick Miller may be barking up the wrong legal tree in their taxpayer-funded court challenge to Amendment A, South Dakota’s freshly approved constitutionalization of marijuana. They have filed an “election contest” when there appears to be nothing about the election itself to contest.

SDCL 12-22-1 defines “contest” as “a legal proceeding, other than a recount, instituted to challenge the determination of any election….” The “determination” of an election does not have to do with the content of a ballot question; it has to do with the conduct of the election, the counting of votes, and the official declaration of the results.

SDCL 12-22-5 makes clear that grounds for an election contest cannot exist until a determination has been made. Plaintiffs cannot commence a contest until after the official canvass of the returns. The contest chapter, SDCL 12-22, thus envisions that election contests will pivot on arguments about the voting process and the certified results of that process.

In a 2001 opinion on an election contest over two referred municipal questions in Watertown, the South Dakota Supreme Court supports this interpretation of contests as focusing on the voting and counting process:

The purpose of an election contest is to challenge “the election process itself.”  Larson, 262 NW2d at 753, n.1.  The basic question in an election contest is whether the election, despite irregularities, resulted in a free and fair expression of the will of the voters.  Id. (citing Green v. Ind. Consol. School Dist. No. 1, 89 NW2d 12 (Minn 1958)).  Therefore, Contestants must show not only voting irregularities, but also show those irregularities to be so egregious that the will of the voters was suppressed [South Dakota Supreme Court, opinion, “In the Matter of the Election Contest as to Watertown Special Referendum Election of October 26, 1999 Pertaining to Referred Ballot Issues No. 1 And 2,” 2001.05.23].

Plaintiffs Thom and Miller are not alleging any voting irregularities. They are not alleging that anyone submitted or counted bogus ballots. They are not saying that dope fiends stood outside the polls scaring away old fuddy-duddies who might vote against Amendment A. They are not saying election officials improperly distributed or withheld ballots or erred in the counting thereof. The complaint cites no violation of election law. Voters voted in an orderly election and expressed their will clearly (Let’s blaze up, dude, and pay taxes on it!) There thus is nothing to contest about this election process.

The plaintiffs argue not against the election process but against Amendment A itself, against the content of the amendment (too many subjects) and the origin of the amendment (an initiative petition instead of a constitutional convention). Their arguments have nothing to do with how any ballot was distributed, marked, submitted, or counted. Their arguments exist independently of the conduct of the election. The legal grounds they cite all existed prior to the election, in constitutional provisions not specific or relevant to the election contest chapter.

Thom and Miller are thus not really contesting the election. They have misfiled a constitutional challenge to Amendment A itself. Their complaint is invalid as filed under Chapter 12-22, since it alleges no voting irregularities that suppressed the expression of the will of the voters. A judge can throw out this bogus complaint without touching the actual constitutional questions, because the plaintiffs raise them in the wrong form.


  1. Mark Anderson 2020-11-21 11:34

    Come on South Dakotan’s, it Kristi’s opinion that matters, not yours.

  2. Nix 2020-11-21 11:47

    Oh, Where do I begin?
    This should surprise no one. What in the world happened to the will of the people?
    What in the world happened to Less Government, more personal freedom?
    What in the world happened to free and open elections?
    These people are dangerous. They look down their noses if you are not in lockstep with them.
    Stay the course South Dakota.
    Don’t let these ignoramuses push their will on the MAJORITY of people that voted yes on A & 26.
    And how in the world can my taxpayer dollars go to support this crap?

  3. bearcreekbat 2020-11-21 14:03

    Cory’s analysis appears to be sound in light of the Complaint’s purported invocation of the Court’s jurisdiction and prayer for relief. Unfortunately, this fundamental mistake by the plaintiffs probably will not end the matter since they can either refile after a dismissal or seek to amend the Complaint.

    The mosty troubling and unusual part of this whole litigation, however, is the decision of South Dakota’s Governor to try to have the State and State taxpayers dollars support this judicial challenge to a South Dakota law initiated and approved by a large majority of SD voters. It would seem seeking a repeal or amendment would be the legally authorized approach.

    Over the years I have seen numerous court cases challenging the constitutionality of particular South Dakota statutes and laws, some of which have been blatantly unconstitutional on the face of the law. I can not, however, recall a single instance where the State joined in an attack on that law by funding the attack or otherwise. This current action by the SD Governor seems a first in S.D. and as Cory pointed out in a previous thread conflicts with the statutory duty of the S.D. Attorney General to defend S.D. laws.

    Likewise, I can find no S.D. statute or other provision empowering the S.D. Governor to make an independent determination not to enforce a S.D. law on the grounds that the Governor thinks the law is unconstitutional. SDCL 1-7-1 list the “Powers and duties of Governor,” which explicitly requires that the Governor “shall see that the laws of the state are faithfully and impartially executed. . . .” This action by Noem seems a plain and direct violation of her statutory duties.

    Indeed, joining and/or funding an attack on a state law is not the typical political approach. Rather it is a little more common for a state attorney general, for example, to refuse to defend the constitutionality of a state law. But even this less drastic action has been subject to valid criticisim.

    . . . the refusal [of a state attorney general] to defend a law in ongoing litigation raises separation of power concerns. If an attorney general refuses to defend the law, depending on state and federal standing jurisprudence, there may be no one able to represent the will of the electorate in the litigation.30 Under those circumstances, the attorney general essentially exercises a veto or suspension power over duly enacted laws. Additionally, when the chief law enforcement official, whose duty it is to defend the laws, refuses to defend a law or decides to join sides with the opposing party, the attorney general undermines public confidence in our legal system. (emphasis added)

    Given the Trump adminstrations untethered relationship with actual facts or laws, coupled with Noem’s sychophantic relationship with Trump and Trumpism, it looks as if Noem simply wants to be the first to break some additional new grounds in our little State to advance Trumpist Republicans efforts to transform the U.S. into an autocratic fascist nation.

  4. John Dale 2020-11-21 16:08

    Glad to hear there’s a chance this will survive the courts.

    When it comes to this kind of legal analysis, I have come to trust Cory’s opinions.

    Time will tell ..

  5. Jake 2020-11-21 16:32

    Thanks, bcb, for good analysis. We the people may have to invest in pitchforks one of these days if the GOP powers continue their mad dash to extinction of their party.

  6. Big Guy 2020-11-21 16:55

    I was wondering if it’s actually all about them protecting their revenue and their job security?

  7. 96Tears 2020-11-21 17:03

    Who has legal standing to challenge a constitutional amendment that was the creation of the vote of the citizens?

    If you can flip that in court, without evidence of improper voting and counting, then the will of an autocrat can also flip the elections of Marion Michael Rounds, Dusty Johnson and Gary Hanson. Or is that somehow different? Only the will of the people can undo a legal election, right? Or do election results now have to pass the personal approval of Republican Presidents and Governors before they are enacted?

    If COVID Kristi wants to reverse the legally enacted constitutional amendment, can’t she and the legislature simply call for a special election? They might get the state supreme court to go along with a stay of implementing the constitutional update until a new election is done. Wouldn’t going through the front door be so much more clean?

    Manipulating two clowns to file a court action with Kristi pulling their puppet strings and filling the pockets of her pal lawyers is all very awkward, underhanded and stinky.

    Get a spine Kristi. You act like a coward. Call for a special election or go home Noem to Hamlin County. You still have one yet, right?

  8. Bob Newland 2020-11-21 17:04

    Even people as stupid as Kevin Thom has exhibited himself to be should be able to ell whether they are opposed to the subject of a constitutional amendment rather than the procedure of getting on the ballot.

    There’s almost no chance that Unlucky Driver Jason Ravnsborg has not been in on the preparation of the suit. Therefore, we also know that bad advice was probably his contribution to what is an absurd, implied and specifically, allegation.

    I believe they intended to attack the result of the election. They just shot at the wrong target, intentionally or unintentionally. I agree with BCB that they can most likely refile the suit, this time being able to pretend they know what they’re actually trying to achieve.

    What they’re trying to achieve is nothing short of–once again in quite a short time–taking the remedy for a grievance–approved of properly by a majority of voters–and tearing it up and pissing on the bits in front of the voters.

  9. grudznick 2020-11-21 19:00

    Those evil bossturds. My granddaughter says they are just doing this to the drug fringe.


  10. Neal 2020-11-21 19:58

    Hey bcb, any thoughts about when they get to the merits of the single subject rule? I know it hasn’t been tested yet so there’s no case law …

  11. T 2020-11-21 20:19

    I’d fire her pr person if I were her
    If she seeks to further her career outside of SD this is A vote killer. If she isn’t willing to back the peoples vote on state level, what will she do on a national level? Easy Pickens on campaign opponent for adversary ads with this one… stay tuned 2024…..for the back peddling

  12. bearcreekbat 2020-11-22 00:46

    Neal, I can’t speculate as to when a court in South Dakota might reach the merits of the single subject rule. It appears, however, that the rule has frequently been the subject of litigation throughout the U.S. as it seems to a part of several state constitutions. See e.g.,

    The linked Virginia Law Review article provides interesting background information on how courts have grappled with the idea of what the “subject” of the law is for the purpose of applying the rule. The typical rule of interpretation is that if the language of a law can be interpreted in two ways – one that renders its unconstitutional and the other that does not, court will choose the latter.

    The article also compares some approaches courts in different states have used determining what constitutes a “single subject:”

    Courts have attempted to arrive at a logical meaning for the word “subject” by asking whether multiple provisions in an enactment are sufficiently related.76 At bottom, whether an enactment’s different proposals are sufficiently related is a mechanism for determining whether the enactment at issue has violated any of the substantive bases for the single subject rule, including logrolling, riding, or legislative transparency.77 To direct this inquiry, courts have devised myriad verbal formulations for deciding single subject questions. For example, Indiana and West Virginia courts determine whether there is a “reasonable basis” for grouping multiple proposals together.78 Illinois courts find a single subject rule violation when the legislature “includes within one bill unrelated provisions that by no fair interpretation have any legitimate relation to one another.”79 California courts similarly ask whether challenged provisions are “reasonably germane to a common theme, purpose, or subject.”80 The test in Minnesota is another variation on the same theme: whether separate provisions “fall under some one general idea, [are] so connected with or related to each other, . . .

    See also

    It will be fascinating to see how the South Dakota courts resolve the question if, and when, the merits are reached.

  13. Bryan Iverson 2020-11-22 07:15

    If they manage to refile under the correct heading there is a strong chance this will have merit. As stated above there is no case law on the multiple issue claim.
    It will be up to the the court to determine this and the SDSC upon appeal from either side. Additionally, I assume there is a temporary injunction to stop implementation of the law while the court process takes place.
    Once again, the elected corruption is undermining our vote.

  14. Cory Allen Heidelberger Post author | 2020-11-22 07:27

    “faithfully and impartially executed”—good catch on SDCL 1-7-1, Bear! I’d love to make that argument in court!

    Indeed, refiling this challenge is a trivial affair. I’m just surprised Kristi’s high-priced lawyers didn’t recognize the difference between an election contest and the actual nature of their complaint.

  15. Cory Allen Heidelberger Post author | 2020-11-22 07:28

    Big Guy, law enforcement could see more revenue from the marijuana tax and be able to more efficiently use the revenue they get chasing more harmful criminals and spending less time on potheads.

    But their concerns about revenue are irrelevant to their election complaint and to whatever corrective refiling they have to make when the judge tells them this isn’t really an election complaint. The Sheriff and the HP chief are obliged to faithfully and impartially enforce the law, just like the Governor. I wonder if maybe they are breaking the law by invoking their official positions to challenge the law.

  16. Cory Allen Heidelberger Post author | 2020-11-22 07:36

    96Tears, they could call a special election to offer a new amendment to overturn Amendment A.

    Actually, if the Thom/Miller challenge were an actual election contest, the courts could order a new election. That’s the point of an election challenge, according to another SD Supreme Court opinion:

    However, the purpose of an election contest, as contrasted with a recount, is not to have certain ballots declared void and to maintain others, but rather to determine whether the election, despite irregularities, resulted in a free and fair expression of the will of the voters on the merits, and to obtain a new election if it did not [South Dakota Supreme Court, “In The Matter of The Petition For Writ of Cetiorari As To The Determination of Election on The Brookings School District’s Decision To Raise Additional General Fund Property Tax Revenues In The Amount of $750,000.00 AND In the Matter of The Election Contest As To The Issue Of The Brookings School District’s Decision To Raise Additional General Fund Property Tax Revenues In the Amount of $750,000.00,” 2002.07.17].

    As further proof this isn’t really an election complaint, calling a new election, letting South Dakotans vote again to express the will that was supposedly thwarted by irregularities in the November 3 election, would not remedy the problems the plaintiffs cite. The plaintiffs don’t want a new election; they don’t want the voters to express their will; they want negate every legitimate ballot and overturn Amendment A.

  17. bruce 2020-11-22 07:57

    What makes this any different from the horrible multi page, multi issue amendment passed by the voters called Marsy’s Law? Since the same groups hated it so much and it was so badly written, why didn’t they go after it and overturn it?

  18. grudznick 2020-11-22 08:37

    Mr. bruce, did not people have to do more amendments to the constitution to fix, partially, the sloppily written Law for Marsy? Mark grudznick’s words down, the horribly written and sloppy mess of the Amendment lettered “A” will have to be fixed up too. Mark down grudznick’s words.

    For those of you expecting this to be the topic at the Conservatives with Common Sense breakfast this morning, you are only partially right. Come and eat, and be righter than right!

  19. Donald Pay 2020-11-22 08:55

    Grudz is partially right. Any statute or part of the Constitution can be improved. It has nothing to do with this particular measure. The problem is that to find out what needs to be changed you have to test it by putting it into motion. Make a good faith effort to make it work, and fix the parts that don’t work.

  20. bearcreekbat 2020-11-22 09:13

    Just to clarify, it is incorrect to say “there is no case law on the multiple issue claim” without some clarification. At this point I haven’t seen any S.D. Supreme Court case law on the subject, although I personally haven’t exhaustively researched that question.

    But a review of the two scholarly articles I linked above indicates there is a plethora of cases across the nation addressing “multiple issue claim[s].” Typically, in cases where there is no obvious binding precedent a court will consider what approaches to deciding the issue have been taken by other courts and implement the approach found to be most consistent with that states existing legal rules.

    Based on the analysis described in the extensive existing case law on “multiple issues” claims from other states identified by the lnked law review articles, it appears that the S.D. plaintiffs here will face a very difficult time convincing a typical court to entirely negate this new constitutional language contrary to the uncontested express will of a significant majority of S.D. voters.

  21. Fast Eddy 2020-11-22 11:21

    Isn’t this in part, at least, about letting the voters know who is really in charge? And that no matter what kind of progressive movement is approved by them, the GOP has no intent on loosening their iron hand in the state.

  22. Cory Allen Heidelberger Post author | 2020-11-22 13:02

    BCB, there is definitely case law elsewhere. But given that the single-subject rule got applied to our initiated amendment process with the enactment of Amendment Z on July 1, 2019, this is the first time we’ll get to test this specific rule on a South Dakota initiated amendment.

    I’m working up a separate post on the topic. I could also be tempted to join as an intervenor for the defense (since Jason Ravnsborg will be utterly ineffectual) and counter that Amendment Z itself is unconstitutional.

  23. Cory Allen Heidelberger Post author | 2020-11-22 13:03

    Fast Eddy, that’s totally what’s happening here. Whatever technicalities they throw at us, Team Noem is out to ensure that the voters don’t cross her. If she has to steal an election—or in this case, completely nullify one—to do it, well, she’s learned from Trump that that’s AOK.

  24. Cory Allen Heidelberger Post author | 2020-11-22 13:05

    Bruce, whatever their reason for challenging the voter’s will here and not on Marsy’s Law, I’m surprised that they are doing so through the incorrect vehicle of an Election Contest rather than a direct constitutional challenge. I continue to suspect that Noem wanted a way to challenge Amendment A in court on the state’s dime, and she couldn’t do that through a normal direct court challenge, so she had to get lawyer McCaulley to cook up this contorted, mislabeled mess.

  25. bearcreekbat 2020-11-22 13:52

    Another interesting point is that Article V, section 5 of the South Dakota Constitution states

    The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions.

    This raises the question of why the Governor did not simply seek the authorized advisory opinion from the Supreme Court to determine whether Amendment A conflicted with Article XXIII, section 1. This constitutionally authorized remedy would certainly have been much more appropriate than using state taxpayer money to fund a challenge in court to Amendment A.

    Indeed, another Constitutional provision, Article III section 3 clarifies the limited powers of the Governor. It not only requires that “The Governor shall be responsible for the faithful execution of the law,” there is no language in that section authorizing the Governor to attack nor fund an attack in court challenging the validity of a state law or constitutional provision, regardless of the method of enactment.

    The Governor in this case appears to have chosen a path to accomplish her personal animosity that is well outside a S.D. governor’s constitutional or statutory authority.

  26. Bruce 2020-11-22 14:18

    Didn’t this have to pass through LRC or the AG Office to be on ballot?

  27. Cory Allen Heidelberger Post author | 2020-11-22 17:18

    Bruce, yes, the LRC and the AG’s office both review proposed initiatives before they are allowed to hit the streets as petitions. However, the LRC and the AG don’t keep the gate on initiatives; the LRC advises, the AG gives a title and an explanation, but all sponsors have to do to get the measure on the ballot is circulate the petition, collect the necessary signatures, and follow the law.

    Bob Mercer has an article up on KELO-TV about how the LRC advised Brendan Johnson back in June 2019, as I reported on these pages at that time, that Amendment A would be better as statute rather than a constitutional amendment, but that advice is not relevant to the legal arguments Thom and Miller are making. That LRC advice revolved around the philosophical argument about whether constitutions ought to stick to general principles and leave policy specifics to legislation. But our Constitution and our laws impose no legal prohibition against putting policy particulars into the Constitution, and the court will want to hear about the Constitution and the law, not philosophy. (Besides, I doubt Thom, Miller, or McCaulley are big on philosophy.)

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