South Dakota voters violated the U.S. Constitution by approving IM 24. Now they will have to pay for it.

Voters, you can’t say you weren’t warned.

That was U.S. District Judge Charles Kornmann’s message in awarding attorney’s fees to plaintiffs who challenged an initiated measure passed by voters in 2018.

Kornmann ordered the state of South Dakota to pay nearly $115,000 in attorney fees to plaintiffs who challenged Initiated Measure 24. The measure, which passed by a 56-44 majority, banned ballot question committees from taking out-of-state money.

Kornmann had previously ruled that Initiated Measure 24 violated the U.S. Constitution’s First Amendment right to free speech, which includes political speech. Non-residents and businesses faced potential civil or criminal sanctions for violating the measure, which would have gone into effect on July 1 had Kornmann not struck it down as unconstitutional.

The measure was challenged in two separate lawsuits, the first filed by South Dakota Voice and Cory Heidelberger, a liberal activist from Aberdeen. Plaintiffs in the second lawsuit included the South Dakota Newspaper Association, Retailers Association, Broadcasters Association, Chamber Ballot Action Committee, Americans for Prosperity and Tom Barnett, the former head of the South Dakota Bar Association.

The state of South Dakota argued that it shouldn’t be required to pay attorney fees because voters passed the measure. But Kornmann rejected that theory, and he noted that then Attorney General Marty Jackley, whose office is responsible for educating voters on ballot issues, warned that Initiated Measure 24 would likely generate a challenge on constitutional grounds. That warning appeared on the ballot.

More: Federal judge strikes down IM 24 as unconstitutional

Ultimately, the attorney fees should be paid by the taxpayers, the same taxpayers who violated the U.S. Constitution when they authorized Initiated Measure 24, Kornmann said.

“Neither the state Legislature nor the majority of voters are allowed to pass laws that violate the Constitution without risking the possibility that those oppressed by the measure will expend attorney’s fees challenging it, and, upon success, be entitled to reimbursement,” Kornmann wrote.

The coalition of groups headed by the South Dakota Newspaper Association hired Jackley to challenge the law after Jackley left office in 2019 and went to work for Gunderson, Palmer, Nelson & Ashmore. Rapid City Lawyer James Leach represented South Dakota Voice and Heidelberger, and the Institute for Free Speech also retained a lawyer in the cases.

In a statement, Jackley said that protecting freedom of speech is a priority for the SDNA and the Broadcasters Association.

“We are pleased with Judge Kornmann’s well-reasoned decisions and believe this now more than ever provides the South Dakota Legislature with the opportunity to improve the transparency and reporting of campaign finance in South Dakota,” Jackley said.

Reach reporter Jonathan Ellis at 605-575-3629 or jonellis@argusleader.com. Twitter: @ArgusJellis.