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AG Agrees with DFP: No Legal Ground for Contesting Vote on Amendment A

In their spaghetti-throwing effort to overturn last month’s free and fair election and prevent Amendment A from making cannabis products legal and taxable in South Dakota, Governor Kristi Noem’s lawyers are contesting the election itself, saying that Amendment A’s unconstitutional scope and complexity prevented “a free and fair expression of the voters.” As I pointed out the day after their filing, neither the complexity, the length, nor the alleged unconstitutionality of Amendment A can serve as grounds for an election contest. Parties seeking to throw out the results of an election must demonstrate drastic failures of the election process; Governor Noem’s fake plaintiffs, Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller, demonstrate no such failures:

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 [CA Heidelberger, “Constitutional Question, Not Election Contest: Plaintiffs Show No Voting Irregularities to Justify Challenge to Marijuana Amendment,” Dakota Free Press, 2020.11.21].

The legal eagles in our Attorney General’s office, who find themselves in the awkward position of having to refute legal arguments offered by fellow law enforcement officers on behalf of their Republican Governor, agree with the analysis offered by this Democratic blogger. In their formal response, Assistant Attorneys General Grant Flynn and Matthew W. Templar tell Noem-appointed Judge Christina Klinger that “an Election Contest is not the proper vehicle to challenge the constitutionality of an enacted referendum” (or, in this case, an initiative):

An election “contest” is “a legal proceeding, other than a recount, instituted to challenge the determination of any election under the provisions of this title, [Title 12], or any municipal, school, or township election.” SDCL 12-22-1…. The South Dakota Supreme Court determined the purpose of an election contest is “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.” …In other words: An election contest “is a challenge of the election process itself.”…

Under these authorities Thom and Miller’s election contest must be dismissed…. They raise no alleged irregularities—like long lines or insufficient parking at a polling place—that occurred in the election process used for the November 2020 General Election. [links added, text citations omitted; AAsG Grant Flynn and Matthew W. Templar for the State of South Dakota, Brief in Support of Motion for Judgment on the Pleadings under SDCL 15-6-12(c), In the Matter of Election Contest as to Amendment A…, filed 2020.12.23; posted in Bob Mercer, “Sides Make Their Points on Whether South Dakota’s Marijuana Amendment Was Valid,” KELO-TV, 2020.12.24 ]

Our Assistant AsG do screw up the courage to call out the plaintiffs for trying to subvert the will of the people, though they couch their accusation with the ironically understated label of “curious”:

Instead, Thom and Miller challenge Amendment A itself and seek to disenfranchise the 415,737 South Dakotans that voted on that Amendment. See Duffy v. Mortenson… 1993 (“It is not the policy of the State of South Dakota to disenfranchise its citizens of their constitutional right to vote.”)

The disenfranchisement that Thom and Miller see is curious because to succeed in an election contest, the “Contestants must show not only voting irregularities, but also show those irregularities to be so egregious that the will of the voters was suppressed.” …They are attempting to turn the shield of an election contest—protecting the will of the voters—into a sword to strike down the will of the voters as to Amendment A.

The Alaska Supreme Court said if best: “‘Courts are reluctant to permit a wholesale disenfranchisement of qualified electors through no fault of their own.'” …And this Court should be just as reluctant, especially given the limited scope of election contests in South Dakota [links added, citations omitted except for Duffy v. Mortenson, because that case involved Patrick Duffy and hanging chads! Flynn and Templar, 2020.12.23].

The Office of the South Dakota Attorney General is too often on the wrong side of democracy. It is a rare pleasure to see that office come to the defense of voters and put down the abuse of power by South Dakota’s law enforcement officers and one-party regime.

The Attorney General’s Office and I agree: no election irregularities took place in this year’s vote on Amendment A. Voters had free and fair access to ballots, and they freely and fairly expressed their will that South Dakota legalize, regulate, and tax marijuana and industrial hemp. Noem, Thom, and Miller have no legal ground on which to contest that free and fair election.


  1. David Newquist 2020-12-27 11:54

    Beyond any questions about removing the cultivation, possession, and use of cannabis from criminal law and making it a legal commodity are the matters of joining the Trump sedition in undermining the most essential part of democracy: elections. Lawyers in the AG office and the sponsors of the amendment have had to address this attack on democratic process in their analysis, just as courts have in dismissing the Trump attacks on it. The subject matter of the attempted legal actions should not divert attention away from the attack on democracy itself.

  2. David Newquist 2020-12-27 13:15

    The only way to stave off another Donald Trump is to recognize that autocracy always happens, Adam Gopnik writes in The New Yorker. “The temptation of anti-democratic cult politics is forever with us, and so is the work of fending it off.”

  3. leslie 2020-12-27 13:29

    “Homophobia, misogyny and capitalism” another good phrase by author Lisa S. Davis of “Tom Boy” about our toxic culture of living in the USA, reflecting, as a grandchild biked over w/ my holiday gifts.

    Anti-democratic cult politics indeed!

  4. Donald Pay 2020-12-27 13:37

    Yes, I’m very impressed with the strength of the AG’s defense, as well as the legal arguments they make. I don’t know how I would have voted on Amendment A, but generally I vote against legalizing “sin,” though I’m not for putting people in jail for it. My main objection is to the lobby for sin that is created after it’s legalized.

    At any rate, my particular position was outvoted by the people of South Dakota and they deserve to have their ideas put into motion.

  5. grudznick 2020-12-27 14:53

    So, Mr. Pay, you’re now admitting, even resolving, that the People of South Dakota outvote your opinion in our Great State and you have no say nor right to complain? I am pleasantly surprised at your turn of admission and appreciate your New Year’s Resolution.

  6. Jake 2020-12-27 15:20

    At ease, Grudz: Mr. Pay spent many years as a South Dakotan and served the people damned well in the process; quite a bit more than you by a long sight. Hadn’t been for him (and other liberal-bent citizens) South Dakota would be swimming in the garbage and sewage ash and or water from the Missouri would be watering thirsty fields in Texas!

  7. grudznick 2020-12-27 15:27

    Oh, Mr. Jake, I know all about Mr. Pay’s employment with the government in the Great State of South Dakota, and his environmental bent, and I thank him for his service.

  8. Donald Pay 2020-12-27 15:48

    Mr. Pay always has a right to complain, Grudz. And Mr. Pay was just one of many foot soldiers, Jake. It takes a village and a hearty breakfast, as I’m sure Grudz agrees.

  9. grudznick 2020-12-27 15:56

    Indeed, a hearty breakfast always helps. Mr. Pay understands grudznick likes clean water and air, too. I just don’t fear the Boogie Man of Mining as much as some, Mr. Jake, and think the “perpetual motion machine” of solar and wind are bogus snipe hunts without storage and transmission, which will burn up even more coal. It’s like those silly electric cars that don’t really save any fossil fuels.

  10. Richard Schriever 2020-12-27 17:09

    grudz ignores – is ignorant of – the simple notion that the Missouri Reservoirs are great hydraulic batteries for the storage of solar energy and their transmission lines are already existant. Equal ignorance of the nature of solar energy is demonstrated by his proposition that “wind” is an energy NOT generated by old Sol.

  11. Cory Allen Heidelberger Post author | 2020-12-27 17:24

    How easily Grudz gets us off topic. Why do so, Grudz? What good public service do you do by drawing people away from a conversation about the topic at hand and into a conversation about personalities, breakfast, or whatever other distraction suits your fancy? Do you derive personal satisfaction from reducing the quality and usefulness of public discourse? Do you fancy yourself a Banksy of the blog world, defacing public conversation for the sake of satire or nihilism or… what? What is your ultimate purpose?

  12. Cory Allen Heidelberger Post author | 2020-12-27 17:29

    The important point here, as Donald notes, is that our Republican Attorney General’s office is making a reasonably good effort to offer the strong defense of democracy and elections that David says we need right now. Trump’s rehearsal coup is not a direct legal issue in this ballot question case (although the intervenors do a good job of incorporating the recent rulings against Trump in their defense of Amendment A and the will of the people). But we can hope that the Trumpublicans’ assault on free and fair elections around the country will make Judge Klinger and other South Dakota jurists all the more hesitant to subvert the will of the people.

    Boy, wouldn’t it be great if Trump’s most lasting legacy was to restore the people’s commitment to the sanctity of the ballot box and their willingness to swiftly punish any elected official who dares contravene our will? Imagine if Democrats could run a candidate for sheriff in Pennington County in 2022 or whenever Kevin Thom’s term comes up next and get voters to oust Thom simply on the fact of his litigation against Amendment A.

  13. grudznick 2020-12-27 17:43

    Mr. H, it is not I who gets led, as you say, off-topic. Your readers take your topics where they choose. They are not a herdable herd.

    You pose an interesting question regarding the Sheriff, Mr. Thom. His term is over in almost exactly 2 years. If there is a good Democrat Sheriff candidate, they should be massing the votes starting now. Mr. Thom has spent a great deal of time greasing his skids the past few years. I could probably get behind a good Democratic Sheriff.

  14. happy camper 2020-12-27 19:15

    Big Sister Kristi simply thinks she is in charge (of us). Her father died at age 22 she quit college and went back to the farm it would be interesting to know her birth order she assumes to know what is best for us which is so hypocritical of her claiming freedom and Libertarianism, and Grutz who screams devil weed while calling himself a Republican, not to mention the biological man (that used to post here) who insists he is a woman and also singlemindedly against marijuana. These three are wildly contradictory and probably have control issues.

  15. Donald Pay 2020-12-27 20:50

    Banksy of blog. Now that could be a slam on Grudz, but I love Banksy’s art, so I’d take it as a compliment. He, Banksy, not Grudz, called graffiti, “underclass art.” That’s how one should view the graffiti-like posts by Mr. Grudz. Sometimes they vandalize discussion, sometime they are art.

  16. grudznick 2020-12-27 21:04

    There are artists, and then there are bloggists.

  17. grudznick 2020-12-27 21:19

    Mr. camper, happily, writes:

    Her father died at age 22 she quit college and went back to the farm it would be interesting to know her birth order she assumes to know what is best for us which is so hypocritical of her claiming freedom and Libertarianism,

    I am struggling to understand that drunken mess of a blogging. Or perhaps it is a product of NDS.

  18. grudznick 2020-12-27 22:12

    Wouldn’t that just be a kicker in the arse? The demon weed gets legalized and then the Republican Machine drops in and controls it all like a cartel. Funnels all the money into Conservative causes. Uses the funds to squelch the faint libbie squeak we hear from the I-29 corridor. The legalized demon weed ends up being yet another bane of the libbies in South Dakota. Like they need another hurdle to overcome.

    Because, who is it again who will control where all the taxes and regulations go?

  19. M 2020-12-28 06:30

    Hey grudznick, you think Amendment A passed with just liberal votes and that it’s just liberals that smoke pot? WOW, count the numbers man, we’re in a red state, with lots of men named Budweiser married to Mary Jane.

    Bud, by the way, is an independent contractor doin who knows what, while his wife works 2 low paying part time jobs at the local businesses. They’re average folks just making it, Trump lovers and pot heads that have redder necks than that turkey they ate for Christmas.

    I’m in a deep red small town and there are enough Buds and Mary Janes to fill a dance hall on a Saturday night. And me, I’m just a straight and sober Lib who stays away from hypocrites.

  20. Richard Schriever 2020-12-28 07:58

    M is correct grudz. The number of pot smoking otherwise permanently deeply burnt red-necked Trumpublican Harley riders (because – FREDUMB) in this state, and in our neighboring states is surprisingly massive.

    This is yet another fact of life of which you are unsurprisingly – ill informed.

  21. Donald Pay 2020-12-28 08:54

    Grudz is right, but so are M and Richard. In the end it all comes down to outright graft, political donations and sin. Once the pot largesse starts rolling into Noem’s coffers she’ll be lighting up with Lewandowski after sex.

  22. happy camper 2020-12-28 17:57

    Often, the firstborn child thinks they are in charge. Birth order dynamics have been widely studied. Big Sister Kristi is just like this, on one hand saying South Dakota has taken our (her) own path, you don’t have to wear masks, it’s ok to kill grandma in the name of liberty, but on the other, I won’t let you inhale a quite innocuous plant.

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