Attorney General Marty Jackley batted .500 for South Dakota this week in the one-party state’s war on the First Amendment.
On Thursday, Jackley secured an unusual en banc rehearing of his defense of 2025 House Bill 1184, the Legislature’s attempt to ignore prior case law and move the deadline for submitting initiative petitions up three months from mild May to frigid February. The Attorney General’s office muffed that argument in summer 2025 before the federal District Court and again this year on appeal on a 2–1 decision from an Eighth Circuit panel.
Seizing on the dissent from that panel, Jackley appealed to the Eighth Circuit for an en banc hearing—i.e., a rehearing of the appeal by all eleven Eighth Circuit judges. A petition for a rehearing is a really long shot: federal appellate courts grant less than 1% of such petitions. But Marty rolled the Yahtzee this time: the Eighth Circuit said, sure, Marty, try again. The full Eighth Circuit roster will hear oral arguments from Jackley and from democracy-defending plaintiff Rick Weiland and his ballot question org Dakotans for Health in January 2027 in St. Louis.
In granting Jackley’s en banc petition, the Eighth Circuit also vacated the three-judge appellate panel’s August ruling. However, the order to vacate and rehear does not appear to stay the original district court injunction of the February deadline, meaning the Secretary of State still may not enforce the February deadline. But whether or not that injunction is stayed, with Jackley and the Eighth Circuit keeping the appeal alive, anyone planning and initiative for the 2028 general election still doesn’t know if the deadline for turning in signed petitions will be the first Tuesday in February of 2028, the deadline suggested by past court rulings of first Tuesday in May, or some other date that may bubble up out of the rehearing of the state’s appeal.
A.G. Jackley didn’t fare as well at the Eighth Circuit on his anti-abortion-speech bender. This summer, the District Court tossed 2026 House Bill 1274, the Legislature’s attempt to quash any talk about the abortion services that the state of South Dakota now denies to hundreds of thousands of women. The state appealed that decision, and Jackley asked the Eighth Circuit to stay the lower court’s injunction against the abortion-speech ban while the appeal is pending. But Thursday (yup, same day as his en banc win), the Eighth Circuit rejected that request… meaning, for the moment, Jackley still can’t put Nancy Turbak Berry in jail for wearing her sweatshirt informing women about access to mifepristone.
Both appeals will outlast Jackley’s tenure as Attorney General. Marty is suggesting he’s game for arguing the petition-deadline case for the state after he leaves office, and he’d likely be even more fired up to carry the anti-abortion banner before the Eighth Circuit next year, but hey, Lance Russell! In case Marty wins his bid for U.S. House and is too busy next year protecting Trump from impeachment, you’d better be reading up on those two cases for when you take charge of the A.G.’s office in January… and checking your own gut on just how hard you, a good constitutional conservative, want to argue for curtailing South Dakotans’ First-Amendment rights.