The state has responded to Melissa Mentele’s lawsuit to place the medical cannabis initiative on the November ballot. The state offers three main arguments:
- The Secretary of State provided Mentele with proper notice of the final rejection of her petition.
- Mentele waited too long, until too close to the ballot question-certification deadline, to seek relief from the court.
- Mentele has not established her right to place her initiative on the ballot by demonstrating that the petition has 13,871 valid signatures.
The person in charge of the election shall immediately notify by certified mail any candidate whose nominating petition or any primary sponsor whose referendum or initiative petition is rejected and declared invalid in accordance with §§ 12-1-13 and 12-1-14.
The state contends that the requirement of immediate notification by certified mail does not apply in this situation because SDCL 12-1-15 and accompanying statutes in that chapter deal with challenges to petitions. The state contends that the governing statues lie in Chapter 2-1, which sets the rules for the Secretary’s sampling and certification of ballot question petitions. Specifically, the state points to SDCL 2-1-17:
If the random sample indicates that a sufficient number of qualified electors have signed the petition, the secretary of state shall certify that the petition has been signed by the required number of qualified electors and shall place the proposed measure or amendment on the next general election ballot. If the random sample indicates that an insufficient number of qualified electors have signed the petition, the secretary of state shall certify that the petition has not been signed by the required number of qualified electors and may not place the proposed measure or amendment on the next general election ballot. The secretary of state shall, within five days of certifying, notify the petition sponsors of the secretary of state’s action pursuant to this section.
The Secretary’s office phoned Mentele on May 27, 2016, to notify her of its final rejection of the petition. That action alone satisfies the text of SDCL 2-1-17. Additionally, the Secretary’s office provided Mentele with a PDF report of the random sample results, apparently on June 1, 2016.
If SDCL 2-1-17 is the governing statute, the plaintiffs’ improper notification argument goes away. But the state’s argument returns us to the legal murk of the Secretary’s handling of the medical cannabis petition. The accompanying SDCL 2-1-15 says, “Upon the receiving of any initiative petition, referred law petition, or initiated constitutional amendment petition, the secretary of state shall examine the petition.” The Secretary was not examining the petition upon the receiving of said petition under Chapter 2-1. The Secretary was re-examining the petition upon receipt of the challenge Mentele submitted on March 3 to the Secretary’s initial examination and rejection of the medical cannabis petition on February 3. Acting in response to a challenge would appear to take us back to Chapter 12-1. The state’s argument here is this highly questionable.
Doctrine of Laches: That’s the legal term for throwing out a claim because the litigants unreasonably delayed filing their claim and thus put the defendants at an unfair disadvantage. The state explains why waiting sixty-seven days after the Secretary’s second rejection of the petition is an “unreasonable delay”:
The Secretary of State must certify an individualized ballot for each of the sixty-six counties in South Dakota by August 16, 2016. Thus, there are only ten business days, including the day service was effectuated upon the Secretary of State, for the Secretary of State and this Court to act. Pursuing this action at such a late date jeopardizes the Secretary of State’s compliance with SDCL 12-13-1 and the timely preparation of the ballots for the general election. Adding to this burden, Plaintiff’s Complaint, as part of the relief requested, asks that this “Court determine the validity of the challenged signatures.” Complaint, ¶ 23. Plaintiff, however, has not identified which signatures she is challenging. The Secretary of State cannot prepare a response without knowing which signatures are being challenged. Given the limited time frames, it’s undeniable that Plaintiff’s late filing impairs the Secretary of State’s ability to respond. Furthermore, Plaintiff’s late filing requests that this Court rather than Plaintiff bear the burden of demonstrating this measure should be placed on the ballot. With 16,531 signatures potentially at issue, this task is likely insurmountable in the time available. At a very minimum, this request jeopardizes this Court’s ability to hold a full and fair hearing on the merits of this case within the timeframe remaining before the Secretary of State fulfill her statutory duty of certifying the ballot. Accordingly, Plaintiff’s Complaint should be denied [link added; State’s “Brief in Support of Defendant’s Motion for Summary Judgment,” Mentele v. Krebs, 2016.08.05].
Time is tight, but no tighter than the timeframe for taking challenges to primary candidate nominating petitions to court in April or referendum petitions to court in the summer of an election year. The limited time frame hinges not on the production of actual ballots (which don’t have to be printed until September 21) but on the requirement that the Secretary send out 66 notices, one to each county, by August 16. That requirement, which has no impact on any voter’s ability to vote and perhaps on no other vital right or public function, is relatively easy to satisfy: the Secretary can run off 66 copies of the medical cannabis measure, address and stamp them, and put them in a box behind her desk. If the court rules this week that she screwed up and should place this measure on the ballot, she runs that box down the street to the post office. If the court rules in her favor, she shreds those notices. Easy!
If the court takes longer than next week to decide this case, the court issues an order enjoining the Attorney General from clapping the Secretary in irons for not fulfilling her duty under SDCL 12-13-1, saying it’s the court’s fault, not hers, for not sending out that last ballot measure certification. The time frame is tight, but not insurmountable.
Demonstrating Validity: The state’s strongest argument is that we still don’t have evidence that the medical cannabis petition has enough signatures to qualify for the ballot. The Secretary has sampled the petition twice and come up with enough errors to disqualify the petition both times. The state says the plaintiff’s complaint filed Tuesday does not establish that the petition itself has 13,871 valid signatures or that the Secretary erred in rejecting any of the over 10,000 signatures she found invalid. The absence of a certified letter from the Secretary dated May 27 does not by itself render several thousand bogus signatures unbogus; the plaintiff needs to cite evidence and statute (at least SDCL 2-1-11, on liberal construal of petitions and protection of intention of petitions from “mere technicality”) that directly disposes of that bogusness.
And remember: by my calculations, even if Mentele makes the case that the biggest error, notary mistakes, should be ignored under SDCL 12-1-11, Mentele still needs to poke further holes in the Secretary’s second examination of her petition to establish that she really has the 13,871 signatures necessary to access the November ballot. They can ask the judge to review the petition himself, but the judge is going to need some legal and evidentiary prodding to take that remarkable step.
The plaintiff seems to have a fighting chance on the first two arguments. But when court convenes Tuesday at 9 a.m. in Pierre, Mentele and her attorney, Aaron Eiesland, will need to make their case on that third and most basic question: did Secretary Krebs err in counting valid signatures? Does the petition have 13,871 or more valid signatures?