HB 1033 Reduces Right to Challenge Primary Candidate Petitions

Dang it! Dang it! Heck and darn! The Legislature snuck away with another portion of our petition rights, and I only noticed yesterday!

Last Session, the Board of Elections brought a proposal to fix a glitch caused by our successful placement of Referred Law 19 on this year’s ballot. Referred Law 19, originally 2015 Senate Bill 69, moved the deadline for submitting nominating petitions from the last Tuesday in March to the first Tuesday in March. 2015 Senate Bill 67 set a deadline for filing court challenges to nominating petitions at the third Tuesday in March. Suspending SB 69 by referral put the petition submission deadline back to the last Tuesday of March, meaning any nominating petitions filed in the latter part of March would have been immune from challenge in circuit court. To ensure a window of review for all petitions, the Board of Elections recommended this year’s House Bill 1033, which passed easily.

HB 1033 turned out to be unnecessary—I’m not aware of any court challenges to nominating petitions this spring—but we needed to rectify the legal contradiction. I noted when it passed that HB 1033 seemed to help the candidate petition process, since it left in place the provision expediting challenges to nominating petitions for primary candidates.

But I missed one small but significant attack on citizen rights to challenge petitions.

SDCL 12-1-13 sets the timeframe from challenging petitions. Before SB 67, that statute gave citizens five days to challenge nominating petitions and local ballot measure petitions and thirty days to challenge statewide ballot measure petitions by filing affidavits with the person in charge of the election. This was the statute under which I filed my challenge against Annette Bosworth’s nominating petition with the Secretary of State in 2014.

In 2015, SB 67 inserted the following language into SDCL 12-1-13:

Any challenge to the certification or rejection of a nominating petition for a primary election made in circuit court shall be commenced no later than the third Tuesday in March. This action takes precedence over other cases in circuit court. Any party appealing the circuit court order to the Supreme Court shall file a notice of appeal within ten days of the date of the notice of the entry of the circuit court order [2015 SB 67].

Proposal #7 in the original draft proposal from the Board of Elections, issued October 19, 2015, called for simply striking the language of 2015 SB 67 and restoring SDCL 12-1-13 to its pre-67 form. But House Bill 1033 kept and tangled that language:

Any challenge to the certification or rejection of a nominating petition for a primary election made inshall be to the circuit court shall be commenced no later than the third Tuesday in March. This action takes precedence over other cases in circuit court. Any party appealing the circuit court order to the Supreme Court shall file a notice of appeal within ten days of the date of the notice of the entry of the circuit court order [2016 HB 1033].

Cleaned up, SDCL 12-1-13 in its entirety thus now reads as follows:

Within five business days after a nominating, initiative, or referendum petition is filed with the person in charge of the election, any interested person who has researched the signatures contained on the petition may file an affidavit stating that the petition contains deficiencies as to the number of signatures from persons who are eligible to sign the petition. The affidavit shall include an itemized listing of the specific deficiencies in question. Any challenge to the certification or rejection of a nominating petition for a primary election shall be to the circuit court. This action takes precedence over other cases in circuit court. Any party appealing the circuit court order to the Supreme Court shall file a notice of appeal within ten days of the date of the notice of the entry of the circuit court order. Any statewide initiated measure or referendum petition may be challenged by any person pursuant to this section by submitting an affidavit as set forth above within thirty days after the petition is filed with the person in charge of the election. [emphasis mine; SDCL 12-1-13].

See that bolded part? Filing an affidavit with the Secretary of State to challenge the petition of a candidate in a primary is no longer possible. HB 1033 banned challenges like my Bosworth challenge. Anyone challenging a primary candidate’s nominating petition has to lawyer up and go to court.

In other words, incumbents and moneyed interests just gave themselves another advantage in the electoral process by taking away one tool that regular citizens had to check petition fraud.

I understand one could justify HB 1033 with a time argument: if one is challenging a primary candidate’s petition submitted at the end of March, and if primary ballots must be printed by mid-April, one hardly has time to file a challenge to the Secretary of State and then to circuit court. But there is no need to take away the SOS-level challenge to ensure time for the circuit court challenge. SDCL 12-1-16 makes clear that “If a person fails to challenge a petition pursuant to § 12-1-13, it does not deny that person any other legal remedy to challenge the filing of a nominating, initiative, or referendum petition.” An SOS challenge is not a pre-requisite to a court challenge; citizens who want to take their challenges straight to court can do so. The SOS challenge that HB 1033 has taken away simply gives citizens a chance to challenge a shady nominating petition without having to invest time and money in going to court.

Among the orders of business for next year’s Legislature should be the repeal of that court mandate and the restoration of affidavit challenges of primary candidate nominating petitions to the Secretary of State.