Right to Lifers Get Jackley to Allege Roe v. Wade Amendment Circulators and Voters Are Violating Petition Law

South Dakota’s anti-abortion Republicans are so scared that their misogynist theocracy won’t withstand a public vote that they have engaged in a yearlong campaign to harass people circulating and signing petitions to put abortion rights on the 2024 ballot. They have used the noisy conflict they create with their intimidation tactics to push county commissions to ban petition circulators from courthouses in Sioux Falls and Aberdeen.

And now they’ve enlisted Attorney General Marty Jackley to amplify their intimidation tactics. On Halloween, the Attorney General sent Rick Weiland, leader of Dakotans for Health’s petition drive to put a constitutional amendment codifying Roe v. Wade on the November 2024 ballot, a letter saying his office has received evidence that could support challenges to the D4H petition:

The CC: to SD Right to Life suggests that the evidence Jackley claims to have came from the anti-abortion activists who have been stalking and harassing petition circulators and signers.

Jackley says the evidence he has received (but not shared with Weiland or the press) suggests possible violations of three statutes:

Pictures and video allegedly show unattended petitions. I’ve always warned circulators that leaving petitions sitting around outside of their watch if not their physical grasp is a grave dereliction of good petitioning practice. Voters’ signatures are gold; failing to keep them secure can lead to their being stolen, especially with anti-democracy radicals waiting to pounce on a chance to foul a petition drive. It also creates the possibility that voters may sign the petition without a witness. Unwitnessed signatures should not count, and a circulator who submits unwitnessed signatures and falsely swears that she witnessed them violates SDCL 2-1-10 and commits a Class 1 misdemeanor.

But suppose the Attorney General has received pictures and video of unattended petitions. Such visual evidence would not show the commission of a crime. It’s profoundly stupid to leave petitions lying around in public unsupervised where people can sign, ruin, or snatch them, but you can’t slap cuffs on circulators for being stupid. To put any stupid circulator in jail, the visual evidence would have to show individuals placing signatures on petitions without a witnessing circulator, and then those very signatures would have to show up in the petitions submitted to the Secretary of State with a signed oath swearing that stupid circulator X did witness those very signatures. If the Attorney General shares the evidence he claims to have with Dakotans for Health, petition sponsor Weiland comb through his stacks of petition sheets, find the signatures shown to be obtained without a witnessing circulator, and scratch those signatures or the entire sheets that contain such demonstratedly unwitnessed and thus invalid signatures, thus avoiding any violation of South Dakota law or ballot integrity.

Video shows “petition signatories may be signing more than once”. SDCL 2-1-6 makes it a Class 1 misdemeanor to sign a petition more than once. Here the penalty would fall on the signer, not the circulator—after all, how is circulator Suzie to know that voter Tillie already signed a petition carried by circulator Uma yesterday or eight months ago?

But voters, too, can have a tough time remembering if they’ve signed specific petitions. SDCL 2-1-6 requires that the state prove that a voter knew she had already signed the petition when she placed her second signature. A video purporting to show voter Tillie violating this law would have to show voter Tillie signing once, then either signing again on the spot or coming back days or weeks or months later and saying, “Oh, is this the Roe v. Wade petition? I signed earlier; here, let me sign again!” The difficulty of establishing a knowing violation of this statute is why, to the best of my knowledge, the state has never prosecuted any voter for signing a petition twice. If such a duplicate signature turns up, the Secretary of State simply discards the later signature and chalks it up to forgetfulness, not willful fraud.

Evidence shows “circulators providing misleading information to the public”. Attorney General Jackley cites SDCL 2-1-1.1, which requires that circulators “provide to each person who signs the petition a form containing the title and explanation of the initiated amendment to the Constitution as prepared by the attorney general; any fiscal note prepared pursuant to § 2-9-30; the name, phone number, and email address of each petition sponsor; and a statement whether the petition circulator is a volunteer or paid petition circulator and, if a paid circulator, the amount the circulator is being paid.” However, Jackley does not say he has any evidence that circulators have failed to provide that form with the A.G.’s title and explanation and other required information. Instead, in his lengthiest statement on any of the allegations (three paragraphs on this point as opposed to only one for each of the preceding two), Jackley alleges that circulators have been saying things that don’t agree with the A.G.’s official explanation.

SDCL 2-1-1.1 does not require circulators to provide the Attorney General’s explanation of their measure and nothing else. Circulators and sponsors can say whatever they want about the measure they are circulating, just as the protestors harassing them and the voters can say whatever they want about the proposed initiative. Jackley can’t put anyone in jail for disputing the Attorney General’s explanation or stating other opinions about a ballot measure. He doesn’t signal that he will; instead, he says this third allegation “may well result in a challenge to the petition process”. But whatever legal spaghetti Jackley’s lawyer chum Rep. Jon Hansen plans to throw at the Roe petition when it is submitted, the argument that circulators said things about the initiative that don’t appear in the Attorney General’s explanation won’t invalidate a single signature.

Once the anti-abortion activists started waving Jackley’s letter around in the press, Dakotans for Health offered this response indicating their ongoing commitment to conducting their petition drive according to Hoyle and to giving South Dakotans the chance to vote that South Dakota Right to Lifers want desperately to deny them:

In response to recent allegations brought forward by SD Right to Life and presented to the office of Attorney General Marty Jackley, Dakotans for Health releases an official response to the South Dakota Attorney General.

“Let me tell you what is actually going on here. We have hundreds of people, mostly young women circulating petitions and collecting signatures to restore reproductive rights in South Dakota. Then the “Decline to Sign” anti-choice, anti-democracy harassers literally follow our circulators around and call them baby killers and tell people not to sign,” said Restore Roe petition sponsor, Rick Weiland.

“Right to Life has of course not shown us the charges they have made or given us their so-called evidence and we are respectfully requesting that AG Jackley provide all evidence and material supporting these allegations so that we can respond appropriately. If a volunteer has not dotted an I or crossed a T somewhere we will address it and comply exactly with every part of the law. But it isn’t rocket science to understand that these anti-choice, anti-democracy charges are just another attempt to discredit our effort. They can try, but we believe they will have a very hard time convincing anyone that it is wrong to let the people decide,” continued Weiland.

Dakotans for Health seeks to uphold the citizen petition process that South Dakota established in 1889 and emphasizes the importance of letting South Dakotans decide on the pivotal issue of women’s reproductive rights. Right now South Dakota has among the most extreme anti-reproductive freedom laws in the country with no exceptions for women or children who have been victims of rape or incest. Under current law, the only exception for an abortion is if a woman or young child is actively dying.

While acknowledging disagreements regarding the reinstatement of reproductive rights, Weiland emphasizes the shared belief in respecting the petition process. He also highlighted concerns about the “Decline to Sign” campaign led by SD Right to Life and other groups, which has been reported to spread misinformation and intimidate volunteers.

“No one can hide the fact that current South Dakota law says the only way a woman or young child, even one who is a victim of rape or incest can get an abortion is if they are actively dying,” Weiland concluded.

Dakotans for Health stands firm in its belief that the people of South Dakota should have the right to vote on issues that critically affect them. In alignment with the state motto, “Under God the People Rule” [Dakotans for Health, press release, 2023.11.02].

It’s disappointing that Attorney General Marty Jackley is throwing his anti-choice supporters a bone by promulgating their smoke-and-mirrors campaign against honest petition circulators and voters who just want to put abortion policy to a public vote. But he and his anti-choice, anti-democracy friends know that the last two times South Dakotans voted on abortion, 55% majorities voted against more restrictions and affirmed Roe v. Wade abortion rights. Thus, by hook, crook, and Attorney General, they have to do everything they can think of to deny South Dakotans the chance to express their will again on abortion rights.