Out-of-State Petition Companies Hire Local “Witnesses” to Skirt Residency Requirement: Welcome to Perjury

Let’s focus on one element of Deputy Secretary of State Kea Warne’s advisory e-mail to petition circulators, the law requiring petition circulators to witness each signature they collect. Warne’s reminder, along with a review of the circulator’s oath and state law, alerts us to the possibility that for-profit circulators may be luring their South Dakota employees into perjury.

Apparently the out-of-state companies hired by many of the current petition drives to collect signatures consider South Dakota’s requirement that petition circulators be state residents annoying and obsolete. Consider this Facebook post and commentary from for-profit circulator Hiram Asmuth of Encore Political Services of Portland, Oregon:

To get around the residency requirement, Asmuth and his associates discuss hiring “witnesses.” As I understand the practice from eyewitnesses in Sioux Falls and Rapid City, the out-of-state circulators hire South Dakota residents to act as witnesses. The out-of-state circulator still does all of the work: calling out to passersby, explaining the petitions, asking for signatures, handing them the pen and clipboard and the required paper with the attorney general’s explanation. The “witness” simply stands or sits next to the circulator and maybe watches what’s going on (although I’ve heard these “witnesses” may also be fiddling with their phones, wandering around in the general vicinity, and not really engaging in the process).

Let’s look again at the statute Deputy SOS Warne cites:

Each person, who circulates and secures signatures to a petition to initiate a constitutional amendment or other measure or to refer legislation to the electors, shall sign a verification before filing the petition with the officer in whose office it is by law required to be filed. The verification shall prescribe that the circulator made reasonable inquiry and, to the best of the circulator’s knowledge, each person signing the petition is a qualified voter of the state in the county indicated on the signature line and that no state statute regarding the circulation of petitions was knowingly violated. The State Board of Elections shall prescribe the form for the verification. The verification shall be complete and the affixing of the circulator’s signature shall be witnessed and notarized by a notary public commissioned in South Dakota or other officer authorized to administer oaths pursuant to § 18-3-1. Any person who falsely swears to the verification provided for in this section is guilty of a Class 1 misdemeanor [SDCL 2-1-10].

And let’s look again at that verification, the “circulator’s oath”:

I, under oath, state that I circulated the above petition, that each signer personally signed this petition in my presence, that I made reasonable inquiry and to the best of my knowledge each person signing the petition is a qualified voter in the county indicated on the signature line, that no state statute regarding petition circulation was knowingly violated, and that either the signer or I added the printed name, the residence address of the signer, the date of signing, and the county of voter registration [oath included in initiative petition form, SDAR 05:02:08:07].

Deputy Warne says a circulator “secures signatures.” The oath says a circulator “made reasonable inquiry” as to voter registration status. Someone who just watches a other sign a petition is not a circulator and commits a Class 1 misdemeanor by signing the circulator’s oath.

More dreadfully, those South Dakotans who think they’re getting paid $15 an hour just to stand around while someone else talks about this weird petition thing and to later sign their own names to the sheets someone else circulated could be busted for perjury. Remember Annette Bosworth? She signed petition sheets that she didn’t circulate. She falsified a circulator’s oath. She is now a convicted felon. Do you “witnesses” want that on your record?

The out-of-state circulators hiring South Dakota witnesses to skirt the law could face the same felony conviction. Hiring those “witnesses” and convincing them to sign false oaths would be subornation of perjury:

Any person who intentionally procures another person to commit any perjury is guilty of subornation of perjury. Subornation of perjury is punishable in the same manner as perjury, and as if the suborner were personally guilty of the perjury procured [SDCL 22-29-6].

Our out-of-state visitors may not like the residency requirement, but they can’t get around it by hiring “witnesses.” They must hire South Dakotans not just to stand and watch but to handle the petitions, to engage with voters, and to ask for signatures.

Update 08:32 CDT: Jason Glodt, SDGOP operative coordinating the petition drive for Marsy’s Law, tries to get around witness concern by calling his circulators “managers” and his witnesses “circulators”:

Jason Glodt, sponsor for Marsy’s Law, said his campaign had not hired circulators from out of state, but he clarified that some managers might not be state residents. Campaigns can legally pair managers and circulators to obtain signatures. While circulators are required by law to be South Dakota residents, managers are not.

Glodt said his campaign is working within the confines of the law.

“We have photo copies of ID’s for every circulator,” Glodt said. “We’re not doing anything wrong.”

Glodt said he thought his campaign was being “drug unfairly” into the politics of the payday loan petitions [Dana Ferguson, “Second Sponsor Alleges Paid, Out-of-State Circulators,” that Sioux Falls paper, 2015.09.17].

Sure, Jason. Good luck with that.