Ballots, not briefs, decide elections.
Judge Stephanos Bibas, opinion, Donald J. Trump for President, Inc., et al., v. Secretary of Pennsylvania et al., Case #20-3371 United States Third Circuit Court of Appeals, 2020.11.27.
So opens the intervenors’ brief from Sioux Falls lawyers Brendan Johnson and Timothy Billion on behalf of South Dakotans for Better Marijuana Laws, four representative and agitated citizens, and Amendment A, the cannabis measure that South Dakotans voted into our state constitution last month. Joining the Attorney General’s office in fighting Governor Kristi Noem’s sneaky, sleazy effort to steal South Dakota’s election, the intervenors fill the outrage gap left in the argument by the gentler assistant attorneys general, who must choose their words against their Governor and their partner-police officers (recall, the Potemkin plaintiffs recruited by the Governor are Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller) carefully if they wish to continue collecting paychecks from Pierre. The AAGs’ argument may be just as effective, but the outsider Amendment A advocates’ arguments will be more fun.
Johnson and Billion challenge this cop-fronted lawsuit on three main grounds:
The Plaintiffs lack standing to bring these claims in their official capacities. Moreover, the Plaintiffs should have presented these arguments well before the November 2020 election, and may not wiat until after the results are in to pull the rug our from under South Dakota’s voters. Finally, the Plaintiffs’ arguments are simply wrong on the merits: Amendment A only involved a single subject and did not require a constitutional convention [Brendan Johnson and Timothy Billion, Memorandum in Support of Motion for Judgment on the Pleadings by South Dakotans for Better Marijuana Laws, Randolph Seiler, William Stocker, Charles Parkinson, and Melissa Mentele, Thom and Miller v. Barnett, South Dakota Sixth Circuit Court, filed 2020.12.23].
Standing in Official Capacity
Thom and Miller bring the Governor’s lawsuit in their official capacity, not as private citizens. Yet in Edgemont School District v. South Dakota Department of Revenue (1999), the South Dakota Supreme Court, citing precedents from Iowa, said officers of the law can’t sue to overturn the law:
A school district] is a legislative creation … . It is not a “person,” within the meaning of any bill of rights or constitutional limitation. It has no rights, no functions, no capacity, except such as are conferred upon it by the legislature.
—Exira Community Sch. Dist., 512 NW2d at 790 (alterations in original) (quoting Boyd v. Johnson, 238 NW 61, 68 (Iowa 1931)).
Counties and other municipal corporations are, of course, the creatures of the Legislature; they exist by reason of statutes enacted within the power of the Legislature, and we see no sound basis upon which a ministerial (or, for that matter, any other) office may question the laws of its being. The creature is not greater than its creator, and may not question that power which brought it into existence and set the bounds of its capacities.
—Bd. of Supervisors of Linn County, 263 NW2d at 232 (quoting C. Hewitt & Sons Co. v. Keller, 275 NW 94, 97 (Iowa 1937)).
[South Dakota Supreme Court, opinion, Edgemont Sch. Distr. v. SD Dept. Revenue, 1999.04.14]
Intervenors contend that the plaintiffs’ duty is to uphold the law, whether they like it or not:
This rule makes good sense: both Sheriff Thom and Superintendent Miller have sworn to uphold the law, which includes laws passed by voters. Allowing officials to challenge laws they do not like undermines the rule of law and improperly injects the state into the election process. Law enforcement officers may not pick and choose which laws they will uphold in their official capacities, and they may not use their offices to play politics [Johnson and Billion, 2020.12.23].
This is particularly concerning where, as here, the state apears to be paying at least some of the legal fees to allow a state official to sue the state. See Arielle Zionts, Legal team to fight for ballot measure that legalized marijuana in South Dakota, Rapid City Journal, Nov. 25, 2020 (Gov. Kristi Noem—who is opposed to recreational and medical marijuana—approved state funds for Miller’s legal fees, according to her spokesman Ian Fury.”) The Plaintiffs have not identified any basis—statutory or otherwise—for the expenditure of public funds to oppose election results. As a result, the Court is confronted with a scenario in which the state is essentially suing itself to determine whether it can avoid a law the voters passed. This Court should not allow the Plaintiffs to undermine the ballot initiative process in this manner [link added, emphasis original; Johnson and Billion, 2020.12.23].
Beyond this potential abuse of their status as public officials, Thom and Miller fail to state any specific personal injury that would give them standing to challenge the election. Johnson and Billion note that in Edgemont, the South Dakota Supreme Court said public officials can’t sue on behalf of injured taxpayers. If Kristi wanted fronts for her effort to foil legal pot, she needed to recruit someone other that two cowed cops.
If all of those arguments fail, the Intervenors spot Plaintiffs some injury-hypotheticals and indicate they are ready to turn the lawsuit into a policy debate over the impact of Amendment A on law enforcement costs… which argument I will leave to the lawyers, since I’m far more interested in the constitutional questions at stake.
Doctrine of Laches—Too Late, My Brothers!
No one yet is having that policy debate about the substance of Amendment A; this lawsuit revolves entirely around the form of Amendment A. And form arguments, Intervenors contend, should have been brought before the election. By the doctrine of laches, aggrieved parties must bring their complaints to court in a timely fashion, when the issue is ripe. If you snooze, you lose.
Intervenors stumble in this argument, incorrectly invoking SDCL 2-1-17.1, which allows any interested party to challenge any ballot question petition by filing an affidavit alleging specific deficiencies with the Secretary of State. Yet such challenges may only address “facial” problems with the petitions, items that the Secretary of State, acting in his purely ministerial capacity, can identify. Per SDCL 2-1-15, The Secretary of State only counts and checks signatures and voter registration in his database; Thom and Miller’s complaint makes not one peep about signatures or voter registration. Had Plaintiffs brought their complaints about Amendment A’s alleged violations of the single-subject rule or failure to call a constitutional convention, Secretary Barnett would have been legally bound to shrug and say, “Tell it to the judge.” Judge and Noem-appointee Christina Klinger will thus ignore Intervenors’ appeal to the 30-day petition challenge deadline.
Intervenors also glancingly mention SDCL 2-1-18, which allows petition opponents to file broader challengers to validated petitions in circuit court before the election. SDCL 2-1-18 gives no deadline for such challenges, although practically speaking, courts have expedited such challenges under the assumption that they must be resolved before ballots are printed three months before the election. On review of the text, I find this law appears to envision only challenges to “the validity of any signature, the veracity of the petition circulator’s attestation, or any other information required on a petition by statute or administrative rule….” While there must be some opportunity to challenge an initiated amendment on the grounds of the single-subject rule or the need for a constitutional convention, SDCL 2-1-18 does not appear to provide that opportunity and thus may not be relevant to Intervenors’ argument.
Those two statutes do suggest that the ripe time for challenges to petitions is before the election, not after. The alleged deficiencies in Amendment A were plainly visible before the election, yet as Intervenors argue, Plaintiffs decided to gamble on beating Amendment A at the polls instead of taking it to court. Citing the Pennsylvania Supreme Court, Intervenors liken Plaintiffs’ action to the Trumpists trying to overturn the Presidential election on the basis of complaints about the application of voting laws:
The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters [Pennsylvania Supreme Court, order, Kelly et al. v. Pennsylvania, 2020.11.28].
Intervenors cite a Wisconsin Supreme Court ruling against Trump from December 14 establishing that, in the context of elections, the doctrine of laches can require complainants to take action within a month or lose their right to complain:
¶19 Finally, the City of Madison held events on September 27, 2020, and October 3, 2020, dubbed “Democracy in the Park.” At these events, sworn city election inspectors collected completed absentee ballots. The city election inspectors also served as witnesses if an elector brought an unsealed, blank ballot. No absentee ballots were distributed, and no absentee ballot applications were accepted or distributed at these events.
¶20 The Campaign characterizes these events as illegal early in-person absentee voting. When the events were announced, an attorney for the Wisconsin Legislature sent a warning letter to the City of Madison suggesting the events were illegal. The City of Madison responded that the events were legally compliant, offering reasons why. Although these events and the legislature’s concerns were widely publicized, the Campaign never challenged these events, nor did any other tribunal determine they were unlawful.
¶21 The Campaign now asks us to determine that all 17,271 absentee ballots collected during the “Democracy in the Park” events were illegally cast. Once again, when the events were announced, the Campaign could have challenged its legality. It did not. Instead, the Campaign waited until after the election——after municipal officials, the other candidates, and thousands of voters relied on the representations of their election officials that these events complied with the law. The Campaign offers no justification for this delay; it is patently unreasonable.
¶22 The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied. Election officials in Dane and Milwaukee Counties reasonably relied on the advice of Wisconsin’s statewide elections agency and acted upon it. Voters reasonably conformed their conduct to the voting policies communicated by their election officials. Rather than raise its challenges in the weeks, months, or even years prior, the Campaign waited until after the votes were cast. Such delay in light of these specific challenges is unreasonable [Wisconsin Supreme Court, opinion, Trump et al. v. Biden et al., filed 2020.12.14].
Thom and Miller had the chance to read Amendment A far more than a month before the election. The Attorney General published his comments on the final text of the proposed amendment on August 16, 2019, fourteen and a half months before the election. Sheriff Thom was on the record in January 2020 opposing Amendment A. They had ample time to go to court to prevent South Dakotans from improperly voting on an improper initiative. Instead, they litigatively snoozed; thus, by the doctrine of laches, they must litigatively lose.
We’ve played the game; the losing coach can’t throw his challenge flag on Monday morning and get the refs to throw out the winning touchdown on a holding penalty.
Johnson and Billion note a Nebraska case from this year in which our neighbors’ high court blocked a medical marijuana initiative from the ballot for encompassing more than one subject. However, the Nebraska Supreme Court held that the single-subject challenge is a question of form, a procedural challenge, not a substantive challenge, and procedural challenges are ripe prior to the election. Intervenors argue that allowing the court to overturn legislative acts of the people undermines faith in elections and the courts.
We’re Not Violating the Constitution—You Are!
Johnson and Billion put some teeth into their doctrine of laches argument with a brief, two-paragraph argument seeking to flip the argument on Noem’s complainants. Intervenors point out that Article 23 Section 3 commands that any constitutional amendment approved by a majority of voters “shall become part of the Constitution.” Intervenors thus contend that Amendment A is a done deal. Plaintiffs want to remove Amendment A from the Constitution… meaning they want to amend the Constitution. Article 23 Section 3 says nothing about allowing a circuit court judge to remove a Constitutional provision; the only allowed mechanism for altering the Constitution is a majority vote of the people of South Dakota. A court complaint is only ripe before we vote; once we vote, no courtroom brief can overturn our cast and counted ballots. In asking the court to strike a portion of the Constitution they don’t like, Plaintiffs are violating the Constitution “by inviting the Court to circumvent the terms of the Constitution and to invade the power granted to the voters.”
Single Subject Amendment
Johnson and Billion then replow the ground covered by the State on the single-subject rule and the question of revision vs. amendment. Intervenors recite comparable marijuana measures from Massachusetts and Florida found in court to be multi-faceted but singly subjective. They contend that the main reason for single-subject rules, avoiding trickery at the polls, was not in play here, as the title of Amendment A gave voters a clear picture of its full intent. They contend Article 23 gives voters wide berth to vote new sections into our Constitution without having to declare their action a “revision” and hold a constitutional convention first. Intervenors also pick up on arguments I offered last month, that the complaint against creating a new section doesn’t comport with our history of enacting new wide-reaching sections by amendment and that it makes no sense when we could easily circumvent such a complaint by casting entirely new and unrelated provisions as sections under our “Miscellaneous” Article 21 instead of separate articles.
The State and the Intervenors work together to make a compelling case that Amendment A consists of a single, integral subject—the regulation of cannabis in South Dakota—and that Amendment fits both the law and accepted historical practice of amending the South Dakota Constitution. Attorneys Johnson and Billion add reasonable arguments that Sheriff Thom and Trooper Miller can’t file this lawsuit in their legal capacity. If we ignore a couple of improperly invoked statues, we can also salvage a reasonable argument from Johnson and Billion that the procedural arguments about Amendment A had to be brought to court before the election. Now that the people have spoken, Thom, Miller, and Noem’s only recourse against Amendment A is another vote of the people in 2022.