Newspaper Error Triggers Re-Hearing of New Election Rules; Board Should Ease Ballot Question Recount Requirement

The South Dakota Board of Elections meets on September 27 to consider new legislation for 2018 and hold public hearings on a bunch of small election rules. Several of the proposed rule changes already had hearings at the Board’s June 15 meeting, but one of the state’s three usual newspapers failed to publish notice of that hearing by the 20-day-prior deadline. Plus, some of the rules didn’t cite the proper 2017 legislation they implement. Thus, on July 17, the Legislature’s Rules Review Committee kicked those rules back to the Board of Elections for revision and re-hearing.

One of the rule changes deals with recounts, which gets me reading our current recount laws (see SDCL Chapter 12-21), which reveals one more way in which our Legislature has made it a lot harder for people to exercise their rights under initiative and referendum than for legislators and other candidates to stand for election.

Recounts are allowed in local races (including Legislative contests) when the margin is two percent of the total vote cast or less. For statewide and district contests, recounts happen when the margin is a quarter percent or less. Candidates get three days to petition for a recount; voters seeking a recount on a ballot measure get ten days.

But here’s the big difference: calling for a recount of a candidate contest takes one person’s petition. Either the candidate herself or, in the case of the Presidential election, the chairman of the state party that nominated the electors, petitions the appropriate election official, and the recount happens. (Two or more of either Presidential candidate’s electors may also petition for a Presidential vote recount.) One signature, one piece of paper, and we’re off to the races.

But if the vote on a ballot measure is close, no one person can call for a recount. Neither the ballot question sponsors nor any committee formed to support or oppose the measure can file a one-man petition. SDCL 12-21-14 says we only recount a ballot measure vote if at least a thousand voters from at least five counties sign a recount petition.

Now a thousand signatures in ten days isn’t impossible. Kevin Weiland gathered 3,834 signatures statewide in about a week for his aborted Congressional bid in March 2010. But that’s still a thousand times more signatures than any candidate needs to ask our election officials to make sure they counted the people’s will correctly.

This signature requirement for a recount that candidates can get by one person’s decisions is one more obstacle to carrying out direct democracy as freely and fairly as we carry out elections of our small-r republican representatives. I do not recall a recount ever being invoked on a ballot measure (out of ten measures on last year’s ballot, the closest margin, on Amendment R, was 1.22 percentage points), but the higher bar for calling such a recount shows that the Legislature does not need to enact any more restrictions on initiative and referendum. The Board of Elections should consider striking the geographical requirement for a recount, or perhaps authorizing the members of any official ballot question committee to file a petition on their own.