Thom, Miller Using Public Resources, Including State Dollars from Noem, to Challenge Amendment A in Court

Before I tear into the core legal arguments, I want to note the weird plaintiffery going on with the election contest Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Colonel Rick Miller have filed to block enactment of Amendment A, the marijuana legalization South Dakota voters approved on November 3.

This is the third election in a row in which a ballot measure approved by the voters has faced a legal challenge. In 2016, Republican lawmakers challenged Initiated Measure 22, the Anti-Corruption Act, in court right after the election and secured a preliminary injunction against its enactment before going on to repeal IM 22 in the 2017 Legislative Session. In 2019, I sued in federal court to overturn Initiated Measure 24, the attempted and unconstitutional ban on out-of-state contributions to ballot question campaigns. In both of those suits, the plaintiffs sued the state of South Dakota and/or its elected leaders. IM 22’s challengers sued the state and the Attorney General; I sued the Governor, the Attorney General, and the Secretary of State. In both cases, the Attorney General had to defend the measures in court, on the taxpayers’ dime.

Thom and Miller have filed an “Election Contest.” Their filing names no defendants. Election law (SDCL 12-22-11) says that contests of candidate elections make the winning candidates the defendants. In contests of Presidential elections, the plaintiffs must designate the proposed winning electors and defendants (SDCL 12-22-13). But there are no candidates in a ballot question vote. SDCL 12-22-15 says a contest of a vote on a statewide ballot question vote must be served on the Attorney General, indicating that the AG—and the taxpayers!—must again rise to the defense of any approved and challenged ballot question.

Yet the plaintiffs are using public resources to prosecute their complaint against the public vote. Thom and Miller say they are bringing their complaint “in their individual and official capacities,” so they are contending that this effort to overturn the voters’ will is part of their public jobs, meaning they think their effort can be carried out while they are on duty, on the taxpayer’s dime. They have published their complaint on the Department of Public Safety website. Sheriff Thom announced the challenge on official Pennington County Sheriff’s letterhead and directed readers to contact his office’s spokeswoman, (still illegally moonlighting) Senator Helene Duhamel.

And as the kicker, Governor Kristi Noem says the state is helping pay for the plaintiffs’ complaint:

The state of South Dakota is paying for part of the lawsuit.

“The governor approved this because she took an oath to support and defend the constitution. This is part of her duty as governor,” spokesman Ian Fury said.

“In South Dakota we respect our Constitution,” Noem said. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit” [Arielle Zionts, “State Paying for Part of Lawsuit Seeking to Overturn Voter-Approved Recreational Marijuana,” Rapid City Journal, 2020.11.20].

That taxpayer cash will go to the plaintiffs’ well-connected, state-favored lawyers, Board of Minerals member and past state bar president Bob Morris of Belle Fourche and Kristi Noem’s favorite lobbyist Matt McCaulley from Sioux Falls. Taxpayer cash will also cover the defense that the Attorney General will mount. So no matter what, taxpayers lose… and win!

In past court battles, private parties have borne the cost of challenging voter-approved ballot questions, and the state has borne the cost of defending them. But now on Amendment A, the state appears to be looking for a way to short-circuit its usual obligation to defend the voters and is pouring its resources into overturning our will. The state can’t do that: election law prescribes that, even in an election contest, the Attorney General is the defendant. Having the state spend money against itself is at least absurd, if not illegal. But the channel they’ve chosen for this trickery, an election contest, cannot be used to overturn a popular vote when there is no sign of voting irregularities that suppressed the will of the voters. Law enforcement officers whose real job is to protect the public should maybe know better; their high-priced lawyers and the Governor helping pay their bills should definitely know better.