Abortion measure tangled up in fight over petition location

A resident adds their name to a petition during the South Dakotans for Better Marijuana Laws...
A resident adds their name to a petition during the South Dakotans for Better Marijuana Laws drive-through petition signature drive for recreational cannabis in Rapid City. (File photo: Matt Gade / Rapid City Journal)(Matt Gade / Rapid City Journal)
Published: Jun. 4, 2023 at 10:51 AM CDT
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SIOUX FALLS, S.D. (South Dakota News Watch) - The clash over South Dakota’s abortion ban and an attempt to make abortion a voter-approved constitutional right in 2024 have a new battleground: the Minnehaha County Administration Building.

Called the “gold standard” of petition circulation by groups soliciting signatures for ballot measures, the government facility in central Sioux Falls features a steady flow of foot traffic from the parking lot to its main entrance. Circulators often station themselves there with clipboards and requests for support of their political cause.

One of the groups is Dakotans for Health, a grassroots organization seeking enough signatures to put the abortion issue on the 2024 ballot.

If passed, it would enshrine the right to abortion in the South Dakota Constitution and supersede a 2005 state trigger law that took effect when Roe vs. Wade was overturned and made it a Class 6 felony to perform an abortion except to save the life of the mother.

Some of the petition circulators have clashed with volunteers from the anti-abortion Life Defense Fund, whose founders call the proposed amendment “a grave threat to life in our state.” The group aims to thwart petitioners through its “Decline to Sign” campaign.

Verbal skirmishes between the groups, and what some county employees and customers characterize as increasingly aggressive behavior from circulators, led the Minnehaha County Commission to adopt a new policy for petition gathering on May 2. It was based upon the recommendation of county auditor Leah Anderson, who was elected in November and sworn in on March 5.

The new policy would restrict petition circulation to two designated rectangular areas: one about 50 feet from the main entrance to the administration building, in the parking lot off Minnesota Avenue, and the other southeast of the main entrance to the courthouse.

The rectangular area designated for petition circulation and other First Amendment activity in...
The rectangular area designated for petition circulation and other First Amendment activity in the parking lot of the Minnehaha County Administration Building. The new rules are pending due to a lawsuit filed by Dakotans for Health. (Photo: Stu Whitney /SD News Watch)(Dakota News Now)

The policy mandated that circulators check in at Anderson’s office prior to conducting political activity “to permit the placement of safety markers and to verify space availability within the designated areas.”

Dakotans for Health responded with a lawsuit in U.S. District Court and was granted a temporary restraining order May 11. The group claims that the new policy “prohibits speech in 99.3% of the outdoor space that was available for First Amendment activity before the new policy was implemented.”

A hearing was held May 26, and Judge Roberto Lange will consider whether to issue a preliminary injunction to further prevent the new rules from taking effect while the judicial process unfolds. On May 30, Lange told the parties that he was extending the temporary restraining order for 14 days, keeping the new policy in limbo during deliberation.

Since the courthouse area is seldom used to gather signatures, debate has focused on the yellow-striped rectangular box in the parking lot.

Dakotans for Health founder Rick Weiland said its location will force circulators to shout at potential signers to go out of their way and potentially walk through parking lot traffic to engage in conversation.

“It’s like an invisible cage,” said Weiland, whose group is also collecting signatures for an initiated measure on the 2024 ballot to repeal the state grocery tax. “No one’s going to come through there.”

Under the previous policy, circulators were allowed to station themselves on the sidewalk near the entrance to the administration building if they conducted themselves in a “polite, courteous and professional manner” and did not “obstruct individuals as they enter and exit the building.”

Problems started occurring over the past few months, according to the county’s response to the lawsuit, necessitating a policy change “in order to assure that (First Amendment activity) is not overly disruptive and that employees are not subjected to unwelcome, hostile, or harassing speech.”

Just past noon on May 26, while the parties pleaded their cases in court, 41-year-old Kerry Ruscitti of Sioux Falls stood outside the main doors of the Minnehaha County Administration Building donning a pink baseball cap, black backpack and a T-shirt that read, “Let the People Decide.”

She carried a clipboard with petitions for the abortion constitutional amendment, which would prevent the state from regulating abortions during the first trimester. During the second trimester, the state could regulate “the abortion decision and its effectuation only in ways that are reasonably related to the physical health of the pregnant woman.” After the end of the second trimester, abortion could be regulated or prohibited except to preserve “the life or health” of the mother.

Ruscitti, who typically positions herself at the Falls Park Farmers Market or other downtown locations, is a volunteer for Dakotans for Health, which also uses a handful of paid circulators for its campaigns. They get paid an hourly rate, with bonuses based on performance compared with minimum gathering requirements. It’s illegal to pay by signature in South Dakota.

Ruscitti said she hasn’t had many confrontations with opposition protesters during her time volunteering, but she said conversations with people sometimes get heated.

“It’s such a touchy subject on both sides,” she said of the abortion debate. “Nobody has really yelled at me. They just get very passionate about reasons why they think (the amendment) shouldn’t happen.”

In a short time, Ruscitti collected a handful of signatures near the building entrance.

In one case she explained to a woman that her signature doesn’t necessarily amount to supporting abortion but merely helps put the measure on the ballot for voters to decide. A few minutes later, a man asked for her to wait until he conducted his business inside and then came out and offered his signature after a brief conversation.

Dakotans for Health petition circulators position themselves on opposite sides of the main...
Dakotans for Health petition circulators position themselves on opposite sides of the main doors at the Minnehaha County Administration Building on Friday, May 26, 2023, in Sioux Falls. (Photo: Stu Whitney / SD News Watch)(Dakota News Now)

The scene offered a reminder of why the administration building – serving a county with nearly 200,000 residents, 22% of the state’s population – has been a petition-gathering hub for decades.

People are constantly coming and going from tasks such as renewing license plates, getting a marriage license or registering a deed. Most are county residents with an established address, which means a high percentage of valid signatures, said Adam Weiland, Rick’s son, who oversees petition drives for Dakotans for Health.

The group collected about 10,000 signatures over 12 months at the Minnehaha County building for the Medicaid expansion constitutional amendment that made the 2022 ballot and was approved by voters, Adam Weiland said. He estimated that more than 20% of the group’s overall signature collection comes from the county building, without the duplicate traffic seen at other sites.

“After working Medicaid expansion for 12 straight months, we still hadn’t exhausted it,” he said. “We were still getting fresh signatures down there. It’s just this diverse stream of traffic with a lot of registered voters and a good universe of individuals to be collecting signatures from.”

The group needs to collect a minimum of 35,017 signatures by May 7, 2024, to place the abortion constitutional amendment on the 2024 ballot. The goal is to submit 60,000 or more to ensure that ballot access isn’t foiled by invalidated signatures or other technicalities.

If the legal challenge fails and Minnehaha County’s petition policy takes effect, Adam Weiland wondered aloud about circulators being confined to the designated area in the parking lot, with counter protestors in the same confined space. “I don’t know if we’ll continue to use (the county complex) if they put us in those boxes,” he said.

His father vowed to carry on regardless of the judge’s ruling. “It will make things a lot more difficult,” said Rick Weiland, a former Democratic candidate for U.S. Senate. “But is it a game-changer? No. We just wouldn’t let that happen.”

Bob Litz, who served as Minnehaha County auditor from 2010 to 2020, said the county’s policy toward signature collectors at the administration building became an issue a few times during his tenure, particularly when contentious issues arose and the deadline for submissions neared.

“I always felt we had to accommodate everybody, and the petitioners don’t have the right to obstruct other people’s access to the building,” said Litz, who is retired and living in Arizona. “Put yourself in people’s shoes. If there was a petition you didn’t care about, would you want to get slowed down going in to take care of business if you’re on your lunch hour and in a hurry?”

The county commission rebuffed the plan, Litz said.

“I proposed that we take a parking space out, yellow stripe it, put a couple of those yellow bollards (posts) at the end of the space, and that would give everybody a lot more room,” he said. “It would be a gathering spot but also a safety buffer for anyone coming in the building. I went in and talked to (the commission) about it, and the proposal was rejected.”

Often the commotion comes from conflicting political interests – those collecting signatures for a proposed ballot measure and those trying to disrupt or add information to that process.

When a group called South Dakotans for Responsible Lending pushed for a 2016 ballot initiative to cripple payday lending in the state with a 36% interest-rate cap, citing the industry’s harmful social effects, the campaign faced aggressive opposition from the Atlanta-based owner of North American Title Loans and other industry supporters.

In addition to starting a rival petition to supersede the rate cap and confuse potential signers, Aycox and company hired out-of-state protestors in 2015 to congest petition-gathering areas, such as a downtown Sioux Falls coffeehouse owned by South Dakotans for Responsible Lending co-founder Steve Hildebrand.

Some of the discord spilled over to Rapid City in Pennington County, where operatives promoting the payday loan industry’s petition clashed with South Dakotans for Responsible Lending circulators.

Police were called numerous times to the county administration building in October 2015, weeks before the deadline to get on the 2016 ballot under the previous rules. Complaints also came from customers who said they were accosted by signature-seekers while trying to enter the building.

Holli Hennies, office manager for the Pennington County Commission, told News Watch that the policy was changed after those episodes to create designated areas for gathering signatures in Rapid City.

Those areas were on the south sidewalk near the main entrance doors for the courthouse and the south sidewalk below the second-floor main entrance doors for the administration building.

The policy, amended in 2018 to include the elevated entrance area outside the second-floor main entrance doors, states that a petition circulator “may engage in discussion, but may not verbally or physically harass, threaten or intimidate anyone for any reason” or “prevent access to the facility or block pedestrian flow to and from the entrance/exit doorways.”

He said that the rules proposed by Anderson are “a little more severe than what we had.” But he once floated his own idea for a designated area away from the sidewalk and door to reduce congestion for customers.

Anderson and other Minnehaha County employees said in court that the Pennington policy was used as a template of sorts to create the new rules for Minnehaha. But Hennies told News Watch that the Pennington County changes didn’t move circulators farther away from the entrance.

“Petition circulators are restricted to the area right in front of our building, so we’ve not moved them away,” she said. “We’ve tried to find the balance of getting people in without being approached if they don’t want but allowing the circulator access to the traffic of our building.”

Pam Cole (left) and Tiffany Campbell of Dakotans for Health discuss petition circulation...
Pam Cole (left) and Tiffany Campbell of Dakotans for Health discuss petition circulation strategy on the edge of the designated area recently assigned by the Minnehaha County Commission. (Photo: Stu Whitney / SD News Watch)(South Dakota News Watch)

The lawsuit filed by Dakotans for Health questions the timing of the policy change, with restrictions coming during a crucial period of signature collection for a politically charged issue in South Dakota, marked by active opposition at the county site.

The group points to a message from Life Defense Fund co-founder state Rep. Jon Hansen, a Republican from Dell Rapids and vice president of South Dakota Right to Life. He told supporters that “we must stand next to their petition circulators, explain to the public how radical this amendment is, and encourage our fellow citizens not to sign.”

One of those “petition blockers” was former state legislator and longtime abortion opponent Manny Steele.

Dakotans for Health circulator Don Schryver in late February accused Steele of “stalking and harassment” for interrupting Schryver’s interactions and, according to Schryver’s petition for a protection order, asking him where he lived.

The following day, according to testimony from Minnehaha County Commission assistant Melinda Storley based on security camera footage, Schryver took Steele’s signs and leaflets, which Steele had placed on the ground while using the restroom, and “threw them in a construction Dumpster to the south of the administration building.”

Jim Leach, the Rapid City lawyer representing Dakotans for Health, noted in his court filings that “nothing would please the objectors more than for their interference to result in the Roe v. Wade petitioners being removed to 50 feet from the building. If this happens, their interference will have given them exactly what they want – not through the force of their reasoning, but through the commotion they have caused.”

Anderson, who proposed the rule changes, is a former secretary and treasurer for the Alpha Center, the Sioux Falls pregnancy resource center founded by Leslee Unruh, a leader of the state’s anti-abortion movement who also co-chairs the Life Defense Fund. Anderson’s campaign PAC, Leah for Minnehaha Auditor, donated $200 to the Life Defense Fund, according to campaign finance reports.

In court, though, Anderson testified that her motivation to change the policy was based on conversations with county staffers who observed an increase in aggressive behavior from petition circulators that made entering and exiting the administration building burdensome, including petitioners who stationed themselves inside the main entrance.

Kim Colwill, an office manager in the Minnehaha County State’s Attorney’s Office, testified that a petition circulator approached her about signing a petition in late February or early March and she told him she wasn’t interested.

“In response, he came so physically close to me that I could feel his breath on my face, and he asked why I didn’t want to talk to him,” she said in her declaration. “He then followed me to my car even after I said I was not interested. This was extremely unnerving for me.”

In his ruling that granted a temporary restraining order, Judge Lange noted that the county’s new policy “preliminarily appears too broad in its restrictions of rights to free speech and to petition the government assured by the First Amendment as applied to state and in turn county government through the Fourteenth Amendment. Simply put, many of the provisions of Defendants’ new policy do not appear to be ‘narrowly tailored to serve a significant government interest.’”

Alex Lange and Claire Wilka, Sioux Falls lawyers representing the county, argued that government actors are within their rights to “enact policies that advance the goals of public safety and unobstructed access to public buildings by placing reasonable, time, place and manner restrictions on constitutionally protected speech.”

They also argued that the sidewalks in front of the county building are non-public forums – unlike most streets and parks – because of their purpose in accommodating the business of county government, meaning a less rigorous standard applies to any regulation or restriction of speech.

Judge Lange called those arguments interesting but also returned to the “equity analysis” of preserving First Amendment rights versus preventing the nuisance of being asked to sign petitions, asking openly, “How does that favor the county?”

Regardless of next steps in the legal showdown, Dakotans for Health expects the sharp dividing lines and passionate beliefs on both sides of the abortion issue to make petition gathering a perilous pursuit as the race to the ballot continues.

“It’s part of their ‘death by a thousand cuts’ strategy,” said Adam Weiland of the measure’s opponents. “That’s how you cool this stuff down, by just making it as hard as you can every time that you can. I think it’s safe to say that shutting down a major location like (the county building) would make things extremely difficult.”

— This article was produced by South Dakota News Watch, a non-profit journalism organization located online at sdnewswatch.org.