Kinda surprising: Melissa Mentele’s filing of an affidavit to challenge Secretary of State Shantel Krebs’s rejection of her medical cannabis initiative petition.
Really surprising: Secretary Krebs’s almost immediate decision to recheck the petition:
South Dakota Secretary of State Shantel Krebs said in a Friday afternoon telephone interview, her second interview of the day with the Journal, that she had the chance to read the complaint, and her office will conduct a new 5 percent random sampling of the signatures for the medical marijuana ballot measure “in order to maintain the confidence in the petition process.”
“We feel it is the right thing to do,” Krebs said.
She said the new random sampling will be conducted within 30 days [Chris Huber, “Complaint Wins Medical Marijuana Measure Another Chance at the November Ballot,” Rapid City Journal, 2016.03.05].
The Secretary’s decision appears to be motivated by two facts. First, the Secretary’s initial petition review appears to have declared unregistered dozens of registered voters. The Secretary is not admitting in the press that any such widespread error took place and questions whether Mentele’s team has an accurate voter list. Mentele tells both the Rapid City Journal and me that her voter registration list is solid.
Second, the Secretary acknowledges that her office took a larger random sample of the Medical cannabis petition signatures than prescribed by law:
“We are trying to give them benefit of the doubt, and we wanted to err on the side of caution,” Krebs said. She said the thought process was that because the number of signatures collected was not much higher than the number needed, a larger sample size for a spot check would be more fair to the sponsors of the petition [Huber, 2016.03.05].
Secretary Krebs’s statement is mathematically and morally correct. Legally, however, Mentele’s challenge appears to make a reasonable argument: if statute authorizes a 5% sample and the Secretary takes a 6% sample, that 6% sample is… extra-statutory.
That statutory argument could be the only legal basis on which Secretary Krebs can take this remarkable step of resampling Mentele’s initiative petition. Statute authorizes (and rule assumes) one random 5% sample, not two samples and an averaging or selection of the better of the two results. It may be that the only way Secretary Krebs can conduct a new 5% sample next week is if we declare that the old sample never happened and that her February 3 rejection of the medical cannabis never happened.
Of course, if we take that position—there was no sample, there was no rejection—then is there any challenge? Does Secretary Krebs have to carry out her statutory obligation to respond to the Mentele challenge with a “written declaration regarding the validity of the signatures in question“? Or is the challenge as null and void as the extra-statutory sample?
Don’t get me wrong: I’m glad Secretary Krebs has announced this recheck. Presented with evidence of a flawed random sample, she’s saying, “O.K., let’s do it again and do it right.” The flaws have to do with ensuring the integrity of the voter registration file, which impacts not only the verification of petition signatures (more of which the Secretary will be receiving from eager candidates over the next three weeks) but voter identification at the polls in this year’s elections. The Secretary can recheck the medical cannabis petition, but she also needs to review the original check, figure out whether and how registered voters were deemed unregistered by her office, and make sure those errors do not result in election officials turning any registered voters away from the polls.
p.s.: We should also note that, while I filed my petition challenge against fake 18% rate cap petition on February 3 and haven’t heard bupkis about her progress on reviewing my affidavit, Melissa Mentele files an affidavit and gets Secretarial action within 24 hours. What am I, chopped bullhead? ;-)