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LaFleur Claims Krebs, Noem, Jackley Conspire to Reject His Petition

Speaking of petitions, Terry LaFleur failed to make the Republican gubernatorial ballot. He thought 2,034 signatures would be enough. But the statutory threshold for statewide Republican candidates this year is 1,955, meaning LaFleur could afford only a 3.88% error rate on his petitions.

Secretary of State Shantel Krebs took a random sample (LaFleur’s count would require a sample of 543) and found an error rate of 39%.

LaFleur should have learned from history: in 2012, Stephanie Strong managed a remarkable petition error rate of less than 6%, but she still failed to make the ballot for the GOP U.S. House primary because she submitted only 2,018 signatures.

Like Strong in 2012, LaFleur’s first impulse was to blame some evil system rather than himself. He told Dana Ferguson last week that he is “being railroaded from getting on the ballot.” In his announcement that he will seek the Constitution Party’s gubernatorial nomination, he said, “the SOUTH DAKOTA RNC PARTY, the Secretary of State, both the Jackley & Noem Campaigns are ‘Working Together’ to keep me off the Ballot in the June 5, 2018 Primary.”

Sorry, Terry, but if you’re going to shout conspiracy, we need some evidence. Show us the petition. Show us the 2,034 signature lines, each filled completely and correctly with South Dakotans registered to vote Republican in the county they wrote on the date they signed. Show us that none of them came from big towns and wrote down a post office box for an address. Show us that every name is legible. Show us that every circulator oath and notary seal is complete and correct.

This conspiracy should be easy to prove. You have the evidence in your hands. Show it, and we can blow the lid off at least a huge error in the Secretary of State’s office, if not collusion with favored candidates to keep a challenger off the ballot. Post the petitions, and let’s have at it!

6 Comments

  1. Darin Larson 2018-04-02 09:59

    Cory, I would like to raise the issue of whether it is constitutional to do random sampling, assign an error rate and then not actually count whether there were proper signatures on the unsampled portion of the petititons.

    The LaFleur petitions are a poor example of my issue because he submitted so few signatures that the secretary of state’s (SOS) office actually found enough errors to mathematically eliminate the possibility of the remaining signatures meeting the statutory threshold. In other words, if you assumed that all the remaining signatures were valid, LaFleur still submitted too few valid signatures to meet the statutory number required.

    Contrast this with a petition where the SOS’s office does their random sampling and assigns an error rate, but they do not find enough errors to discount the possibility that there could be sufficient signatures if their error rate is incorrect. In other words, if we assumed that all the remaining unchecked signatures were valid, there would be sufficient signatures to meet the statutory threshold.

    My contention is that in this latter example, it is unconstitutional for the SOS to discount the possibility that there does exist sufficient signatures to meet the required threshold. The SOS should be required to examine the validity of the petitions until it is conclusively determined that there are too few signatures remaining to be counted that even if you granted that the remaining signatures were all valid, there would still be insufficient signatures to meet the required threshold.

    When we count votes, we do not do random sampling and then stop counting and award the election to the winner according to random sampling. I think it is just as absurd to stop counting petition signatures based upon random sampling.

    Furthermore, to not fully count the petition signatures for the convenience of the SOS’s office is a violation of our state constitution and likely the 14th Amendment of the US Constitution. The SOS is not giving full effect to all petitioners and their signatures and the failure to count all of the signatures (at least until all remaining signatures are presumed valid) is unconstitutional.

    Therefore, the SOS should be challenged in court with regard to those petitions that have been deemed insufficient, but where the SOS did not give full effect to signatures not actually checked.

  2. Cory Allen Heidelberger Post author | 2018-04-03 10:22

    At first, Darin, I was dubious. But when you get to the analogy to voting, the fact that we don’t randomly sample to determine election results, and the issue of equal protection under the 14th Amendment, you start cooking.

    Now let me test your suggestion: consider that the SOS does actually count every signature on the petition. Every person who marks that petition makes a difference: the random sample and the ultimate validity calculation are based on that raw count of every marked line.

    We count every vote at the polls, but we check the validity of each vote before each vote is cast. Our poll workers with the voter roll are our quality control; we thus assume that every ballot case by a person who makes it past that quality control is valid. Thus, we don’t do any random sampling of our ballots.

    We count every signature on a petition, but our election officials do no quality control before those signatures are “cast”. Thus, election officials need to do some quality control after the petition is submitted. In the case of smaller petitions, we check every line until we find enough to cross the threshold or until we get to the end and find the petitioner fell short. In the case of statewide petitions, we economize by using random sampling.

    Now I’m not sure, I’m just testing: can we argue that the SOS really does count every signature, thus satisfying your 14th Amendment concern, and that the random sample happens after that count, thus posing no constitutional problem?

  3. Cory Allen Heidelberger Post author | 2018-04-03 10:28

    Doing the math on Darin’s statement about properly DQ’ing LaFleur on the basis of his sample: Per ARSD 05:02:08:00.05, if LaFleur’s count was accurate at 2,034, the statistical formula required Krebs to sample 26.85% of the signatures submitted. The reported 39% error rate translates to 212 bum signatures. Best-case scenario, if every signature outside the sample were valid, LaFleur would have had 1,822 valid signatures, 6.8% shy of the threshold.

  4. Darin Larson 2018-04-03 11:07

    Cory writes: “Now I’m not sure, I’m just testing: can we argue that the SOS really does count every signature, thus satisfying your 14th Amendment concern, and that the random sample happens after that count, thus posing no constitutional problem?”

    No, that is insufficient. They are counting each signature as a “possible signature” and not an “actual signature.” Unless the SOS examines a signature and accompanying information and determines that it is insufficient, the signature must be assumed to be an actual effective signature meeting the requirements of the statute. The legislature has chosen expediency and efficiency over accuracy and conclusiveness. Where is it written that validly submitted signatures that have yet to be examined should be assumed to be without effect because of a statistical sampling model?

    The SOS’s office is dismissing a certain percentage of signatures (the error rate) with an assumption that is only valid X% of the time. I think the Constitution requires more than that. A prime tenet of democracy is to give effect to every vote and every lawful petition signature. Using statistical modeling to determine the efficacy of a petition submitted to the SOS is like using polling to determine the winner of our elections. We would never settle for polling as a substitute for counting each vote in an election, so why would we settle for statistical sampling to determine the qualification of a petition?

    I’m glad you are beginning to see the light, even though you love math so much that an excuse to use your considerable math skills initially was clouding your viewpoint on this issue. :-)

  5. Darin Larson 2018-04-03 11:25

    Further analogizing to voting, I would argue that what is currently happening with petitions would be akin to the following:

    Poll workers would take down voter information when a person appeared at the voting booth, but they would not check it against the voter rolls. Instead, that person would be given a ballot and allowed to submit that ballot. After the polls closed the election workers would then use random sampling statistical techniques and analysis to determine how many votes were cast in error and which candidates were favored by the erroneous ballots. Then the vote totals would be adjusted using these mathematical models. Now, this would be quite absurd to most people I would think, but this is very close to what we are doing in the realm of petitions.

  6. Cory Allen Heidelberger Post author | 2018-04-04 20:40

    There. That’s the analogy I needed. Thank you, Darin.

    So do we appeal directly to the 14th Amendment, or are there any South Dakota constitutional provisions that we could invoke in this lawsuit?

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