[Disclosure: I work for Dakotans for Health. This blog post is written on my own time and dime.]
Those South Dakotans marching up Phillips Avenue in silent protest of South Dakota’s abortion ban yesterday may wish to raise their voices come November, not just in voting, but also in circulating a petition to write Roe v. Wade into the South Dakota Constitution. South Dakotans wouldn’t get to vote on restoring women’s rights until November 2024, and an approved amendment wouldn’t take effect until July 1, 2025, but that’s the soonest South Dakotans can make such a constitutional change, and that process must start now.
Secretary of State Steve Barnett has posted an initiated constitutional amendment submitted by Rapid City attorney Jim Leach on behalf of Dakotans for Health, the ballot question committee that is promoting Initiated Measure 28 for Medicaid expansion. The proposed amendment closely follows the trimester standards established by the 1973 Supreme Court for the proper scope of government regulation of abortion by trimester:
- In the first trimester, the decision to have an abortion is left to the judgment of the pregnant woman.
- In the second trimester, the state may regulate abortion, but only in ways “reasonably related” to protecting the pregnant woman’s health.
- In the third trimester, the state may regulate or even prohibit abortion except in cases where a woman’s doctor says an abortion is necessary to protect the woman’s life or health.
The Secretary of State has posted the draft amendment submitted to the Legislative Research Council in May for review along with the LRC’s June 17 comments and proposed revisions. For the first time, the LRC carried out its new statutory duty to provide an opinion on whether the amendment obeys the single-subject rule and properly seeks an amendment and not a farther-reaching revision of the constitution, the issues that Governor Noem raised in her successful court challenge to Amendment A, the marijuana legalization that voters approved in 2020. LRC director Reed Holwegner shines a green light on both points: the proposed amendment “appears to embrace only one subject, the availability of abortion” and “does not result in a far-reaching, complete, comprehensive, and substantial rewrite of the state constitution.”
SDCL 2-9-30 requires the LRC to notify petition sponsors if their proposal would “have an impact on revenues, expenditures, or fiscal liability of the state or its agencies and subdivisions.” The LRC’s response does not indicate any fiscal impact from the state-level restoration of Roe v. Wade rights. It would thus appear that this amendment would not require the inclusion of a fiscal note on circulator handouts or the ballot.
Dakotans for Health has subsequently made minor revisions and submitted a final draft of the amendment to the Attorney General, who has 60 days to prepare a title and explanation to appear alongside the final wording of the amendment on the initiative petition. Thanks to more Republican process-jamming, the Attorney General then gets to delay release of the title and explanation for another 20 days by taking 10 days of public comment on his proposed title and explanation (not on the amendment itself, mind you, only on the A.G.’s title and explanation) and then another 10 days to revise and publish the final text of the title and explanation.
Dakotans for Health has started early enough that, even if the Attorney General takes the full 80 days to produce a title and 200-word-maximum explanation, that delay will not deprive Dakotans for Health of any possible petition circulation days. Dakotans for Health submitted its final language to the Attorney General’s office on June 20. The A.G.’s staff were probably a bit distracted that week, but turnover at the top doesn’t pause the clock for carrying out official duties. Attorney General Mark Vargo has until August 19 to produce a draft title and explanation, until August 29 to take public comment on that draft, and until September 8 to produce the final title and explanation. SDCL 2-1-1.1 gives citizens seeking an amendment to the South Dakota Constitution twelve months to collect signatures, in this case, starting November 5, 2022. Thanks to getting started early, Dakotans for Health will thus have at least eight weeks after A.G. Vargo issues his title and explanation to format, proofread and print its petitions and circulator handouts; recruit and train circulators; and submit final paperwork to the Secretary of State before beginning its petition drive three days before this year’s general election.
While other states (e.g., Nebraska, Michigan) allow citizens to be on the streets right now collecting signatures to place measures on their ballots this November, South Dakota requires citizens to call for votes on constitutional amendments a full year before the actual election. South Dakotans have no mechanism to respond to the Alito Court’s reversal of Roe v. Wade with a constitutional restoration of those rights this year. 2024 is the soonest we can call a vote, and the process for calling that vote has to start now.