Petition challenges during the past couple of election cycles have gone nowhere in the Secretary of State’s office, largely because our Secretaries of State have claimed that their function in reviewing petitions is purely ministerial. As reaffirmed by new limits on petition challenges in 2017 House Bill 1035, the Secretary of State can only review petitions for facial completeness—i.e., she can look at the marks on the papers but not any external information about how those marks got there.
Yet as I page through our petition law, SDCL 2-1-14 leaps to my attention:
All signatures secured in a manner contrary to the provisions of this chapter may not be counted.
That short, sweet sentence in the chapter on initiative and referendum seems to create a pretty clear duty for the Secretary of State and any other election official not to count illegally secured petition signatures. The official hand-tying of HB 1035—now written into SDCL 2-1-17.1—seems to contradict that duty. If the Secretary of State receives information that signatures have been secured illegally—without a proper witness, by an out-of-state or underage circulator, by circulators being paid by the signature—SDCL 2-1-14 compels the Secretary to not count those signatures.
Several initiative petitions are circulating now and are due in Secretary Krebs’s office by November 6. If anyone has evidence of hinky circulating practices, this November may provide an opportunity to test the duty prescribed in SDCL 2-1-14 with the new restrictions on carrying out that duty in SDCL 2-1-17.1