• Tag Archives Board of Elections
  • 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.



  • Curd Names Knobe, First Independent, to Board of Elections

    Senator R. Blake Curd did something nice this week. The Republican Majority Leader had the opportunity to appoint a replacement for fellow Republican Drew Duncan on the state Board of Elections. Instead of exercising his partisan prerogative, Senator Curd made a little history by picking a non-Republican neighbor from District 12, radio man, former Sioux Falls mayor, and registered independent Rick Knobe:

    Rick Knobe, independent, Board of Elections
    Rick Knobe, independent, Board of Elections

    Knobe will be the first registered Independent voter to serve on the bipartisan board.

    “This is going to be a grand adventure! Working to ensure election laws are fair to all, ballot access is open, and our procedures use the best techniques and technology available is important. I am eager to join the ongoing effort,” stated former Mayor Knobe [“Vermillion Woman Named to SD Board of Elections,” Yankton Press & Dakotan, 2017.02.06].

    Knobe is a keen political observer, and in 2016, he was involved in the campaign for Amendment V, the failed ballot measure that sought to create and open nonpartisan primary system.  Hyperpartisans may not like Curd’s choice, but given Knobe’s experience with ballot measures as well as regular candidate campaigns, along with his ability to speak for the growing number of independent voters, Knobe is a good choice for the Board of Elections.



  • HB 1035 Unfair to Rejected Petitioners

    A politically interested friend expresses due alarm at House Bill 1035, one of four bills carrying proposals from the Board of Elections to amend our petition and election statutes.

    HB 1035 includes new restrictions on the petition challenge process. I summarized all of the niggly bits in my November summary of the results of the Board’s last meeting. The main provision irking my friend and me is the new set of restrictions on petition challenges. Right now, if the person in charge of an election rejects a petition for a candidate or a ballot measure, the candidate or ballot measure sponsor can file a challenge with that official pointing out errors in the official’s count and arguing that the official should reverse her call and certify the petition. HB 1035 takes away that opportunity. Rejected petitioners would be forced to go directly to court to fight for their place on the ballot.

    As I explained in November, taking away that opportunity to challenge a petition rejection is unfair to petitioners. Opponents of a petition can take one free shot at blocking a petition from the ballot at the election office level; Supporters of a petition should get the same opportunity to protect their place on the ballot.

    I’d say we could save HB 1035 by amending out this offending challenge restriction, but none of its other provisions—formally restricting grounds for petition challenges, applying new restrictions to paying petitioners to organize new political parties—make it an urgent reform. Let’s just nuke the whole bill and leave petitioners alone on this front.



  • Board of Elections Approves New Petition Challenge Rules, Revives RL 19 Attack on Independents

    The South Dakota Board of Elections mustered a meager quorum today (five of seven members on the conference call at the start, but only four of seven members on the line for voting) to discuss final revisions to their proposed legislation for 2017. Many of the changes were small technical issues (more election nerd material!), but by the end of the meeting, the Board of Elections unanimously approved another attack on independent ballot access.

    First, the Board tackled petitions. The Board finalized a proposal to list in statute elements of nominating, initiative, and referendum petitions that cannot be challenged with election officials and must instead be taken directly to court:

    1. Signer does not live at address listed on the petition;
    2. Circulator does not live at address listed on the petition;
    3. Circulator listed a residence address in South Dakota but is not a South Dakota resident;
    4. Circulator did not witness the signers;
    5. Signatures not included in the five percent random sample; and
    6. Petition that was originally rejected [South Dakota Board of Elections, proposed statutory language, document circulated 2016.11.16].

    These restrictions on petition challenges respond to a suggestion made by Judge Mark Barnett last summer during hearings on petition challenges that the Board clarify in statute that election officials can only look at matters of “facial completeness”—i.e., petition details that election officials can recognize as correct or bogus just by looking at the petition sheets—and voter registration. Petition challengers must take any other concerns to court, not to the Secretary of State.

    But #5 goes further on statewide petitions, restricting challengers’ ability to look outside the 5% sample the Secretary of State reviews for completeness. I find that restriction unfair. The Secretary looks at some facial matters prior to and independent of the 5% sample. The 5% sample exists solely to spare the Secretary the trouble of looking at every signature line; if citizens are willing to go to that trouble, they should be able to ask the Secretary to review an itemized list of facial errors they identify outside the 5% sample.

    #6 provides a clarification that goes in the wrong direction. Last March, medical cannabis advocates challenged Secretary Krebs’s rejection of their initiative petition. That challenge revealed an apparent gap in our petition statutes: state rules are relatively clear on how to challenge validated petitions, but they aren’t clear on whether petitioners can challenge the Secretary’s rejection of their petitions. In #6, the Board of Elections is saying they cannot, at least not without going to court.

    That proposed rule puts petitioners and challengers on an unequal playing field. People who don’t want a petition to go through can hope the Secretary of State finds enough errors to toss a petition. If petition opponents feel the Secretary errs in validating a petition, they can challenge her directly before resorting to circuit court. Under this new rule, petition circulators get no such pre-court recourse for errors by the Secretary. If the Secretary rejects a petition based on errors in sampling, identifying facial errors, or reading voter registration, petitioners have to lawyer up to fix those errors. Goose/gander: all parties interested in a petition should get a chance to air their concerns with the Secretary’s handling of petitions without going to court.

    The Board of Elections then turned to Legislative and county races and snuck in a bit of just-defeated Referred Law 19 to continue the war on independent ballot access. The proposal originates in the concern that, in the seven counties that use vote centers (i.e.,Brookings, Brown, Hughes, Hyde, Potter, Sully, and Yankton, where voters can go to any polling place instead of reporting to their one geographically determined precinct to vote), election officials can’t get a clear count of how many people in each precinct cast votes for Governor. For example, here in Brown County, I can truck on down to Stratford, which is in District 2, and still cast my District 3 ballot. Brown County will know that I voted, but it won’t know whether I voted for Governor.

    Whether I voted for Governor matters because we currently use the gubernatorial vote count to determine petition signature requirements. To run for Legislature, candidates have to collect signatures from either fifty people or “one percent of the voters who cast their vote for the party’s gubernatorial candidate, whichever is less.” Since vote centers foul that district-level gubernatorial count, the Board last month considered passing flat thresholds just for vote-center counties: 50 signatures for Legislative candidates, 30 signatures for county candidates, 15 signatures for county commission district candidates. The Board rejected that idea and asked for something else. Secretary Krebs thus appears to have cribbed Section 6 of Referred Law 19 with this proposed amendment to SDCL 12-6-7.1 and added a gratuitous increase in signatures:

    Notwithstanding the provisions of § 12-6-7 a nominating petition for a candidate for office in the State Legislature, county political public office, and county party office shall be signed by not less than fifty sixty voters or not less than one percent of the registered voters who cast their vote for in the candidate’s party‘s in that legislative district, county or county commissioner district gubernatorial candidate at the last general election, whichever is less. The petition shall clearly designate the senatorial or representative district for which said individual is a candidate [BOE, 2016.11.16].

    Notice how far this moves from the original vote-center counting problem. This proposal applies to every county, not just the seven where vote centers foul the gubernatorial count. Raising the default signature count from 50 to 60 has nothing to do with the counting problem. And as with Referred Law 19, basing signature counts on total registered voters instead of turnout in the gubernatorial election practically guarantees that everyone will have to get more signatures, meaning more candidates will fall short, and voters will have fewer candidates on their ballots.

    Secretary Krebs then brought forward an even bigger ker-whallop on independents with this proposed new section for Chapter 12-7:

    The number of signatures required shall be signed by not less than one percent of the total number of registered voters in that legislative district, county or county commissioner district at the last general election. The petition shall clearly designate the senatorial or representative district for which said individual is a candidate [BOE, 2016.11.16].

    The Secretary’s handout to Board members indicated that in District 10, in and east of Sioux Falls, independent candidates for Legislature would see their signature requirement jump from 71 to 157. Similar increases would happen in most districts.

    Alarmingly, the sentiment of the committee seemed to be, serves those independents right! Board member Linda Lea Viken noted that independent registration is increasing and they can collect signatures from any registered voter. Secretary Krebs noted the additional month independents get to circulate petitions. Viken thus concluded that independents have greater opportunity to get voter signatures than party members.

    I understand the need to settle on one simple, objective standard for determining signature requirements. 1% of registered voters is a simple, objective standard which, says Secretary Krebs, better captures who potentially could nominate candidates in each district.

    However, the registered vote count is not as fair a standard as the equally simple and objective standard of actual turnout. Even vote centers record turnout by district. We don’t know which ballot lines those vote center voters may have marked, but we know they cast ballots. Turnout better represents people who are likely to bother to sign nominating petitions. Registration numbers include lots of people who may not have voted for the last six years and thus are far less engaged politically than active voters.

    And as I explained in numerous conversations about Referred Law 19, independents do not enjoy any unfair advantage in collecting petition signatures. They have no party to hold meetings and organize petition drives. The “extra month” they get to circulate petitions recognizes that, more often than not, independent bids are reactions to the failure of the major parties to field acceptable candidates. Practically, most independent candidates don’t get an extra month to circulate; they have only that month to circulate.

    Instead of beating up on independents, we could stick with a turnout calculation and keep signature requirements where they are now. We could set hard numbers for each district close to current levels. We could adopt the suboptimal statewide formula of requiring independents to get essentially the sum of the Republican and Democratic signature requirements. Any one of those options would resolve the vote-center uncountability without further restricting independent ballot access.

    The Board of Elections approved these measures with minor amendments. These proposals will thus bubble up in the Legislature, where we’ll have to seek some Republican support for easing the petition restrictions and ending the assault on independent ballot access.



  • Board of Elections Considers Making Petition Challenges Cheaper But Tougher

    Also Offers to Help Minor Parties Keep Official Status

    The South Dakota Board of Elections met yesterday to consider draft legislation that it may propose to the 2017 Legislature. The draft proposals include a number of important changes to the election process.

    First, the Board of Elections recognizes an error in election law created by the 2016 Legislature that banned citizen challenges to primary candidate petitions. Alerted by this blog to that error last spring, Secretary of State Shantel Krebs followed through on her promise to bring that error to the Board’s attention. Item #5 in the draft proposals strikes the offending language and restores our right to challenge petitions first to election officials before resorting to circuit court.

    The Board is proposing to make it mostly cheaper for petition challengers to obtain copies of submitted petitions. The Board isn’t going as far as my proposal to post all petitions online, but they are at least setting a fixed cost for electronic copies of each type of petition, regardless of number of pages. The Board suggests adding this language to SDCL 1-8-10, which sets fees for services performed by the Secretary of State’s office:

    1. If the document is a petition and request is for an electronic file the following fees shall be:
      1. Nominating petition for a legislative candidate or special district candidate fifteen dollars;
      2. Nominating petition for a statewide candidate fifty dollars;
      3. Petitions for statewide ballot measure five hundred dollars;
      4. Petitions for new party formation five hundred dollars [Board of Elections, 2017 Proposed Statute Changes, 2016.10.13, p. 1].

    Note that for legislative candidates and special district candidates, whose petitions may consist of just one, two, or three sheets, $15 may be more than the current cost of $2 per sheet. However, $50 for a statewide candidate’s petition will be much less than the $452 I paid to obtain Annette Bosworth’s nominating petition in 2014. $500 for a statewide nominating petition is notably steeper, but it is still a break from the thousands of dollars it would have cost to obtain copies of any of the initiative and referendum petitions submitted in 2015. New party petitions require only half as many signatures as an initiated law petition, so setting the cost of a new party petition at $500 is simply unfair. I would suggest amending the costs down: while it may take ten times as long to scan an initiative petition to PDF than it takes to run a nominating petition, once those PDFs are created, the cost of making additional copies is effectively zero. If we must charge for electrons, set the costs at $5 for Legislative candidates’ petitions, $20 for statewide candidates’ petitions, $50 for new parties’ petitions, and $100 for ballot measure petitions.

    Once we get those cheaper petitions, though, the Board of Elections wants to make it harder for citizens to successfully challenge a petition without going to court. Items #4 and #5 would spell out items that the Secretary of State will not consider in petition challenges:

    1. Signer does not live at address listed on the petition;
    2. Circulator does not live at address listed on the petition;
    3. Circulator is not a South Dakota resident;
    4. Circulator did not witness the signers;
    5. Signatures or petitions sheets not included in the five percent random sample;
    6. Petition that was originally rejected; and
    7. Challenger cannot challenge a petition more than once [BOE, 2016.10.13, pp. 2–3].

    These rules essentially spell out the “facial completeness” standard that Secretaries of State have used to evaluate past challenges: the Secretary of State can only check whether all lines on the form appear to contain required information. The Secretary of State cannot investigate anything beyond whether signers were registered voters at the time they signed. If petition challengers have evidence of other violations that would disqualify the petition, they need to take that evidence to court.

    Unfortunately, these conditions go beyond codifying current practice; they raise two new significant barriers to challenges. First, on statewide petitions, the Board of Elections proposes limiting challenges to the five-percent sample of signatures the Secretary of State takes, not a review of the entire petition. Challengers can only ask the Secretary to review the signatures she looked at, not other bogus signatures or the petition in its entirety. If challengers waste the Secretary’s time by including even one signature outside the five-percent sample or any other item included in the above conditions, the Secretary throws out the whole challenge. Finally, the proposed changes would require that challengers’ submit their original affidavits to the person in charge of the election by the challenge deadline. In both of the statewide petition challenges I’ve conducted, I’ve been able to submit my affidavit electronically and drop the original paper affidavit in the mail before the deadline. Requiring that challengers deliver the original paper affidavit by the deadline effectively reduces the time available to work on a challenge by at least one day (and adds the cost of overnight delivery or a long, hard drive to Pierre). In a large, rural state where maybe 3% of the population lives within an hour’s drive of the capital, and when we have technology that allows the instant and secure transmission of official documents, requiring paper originals to meet a deadline is an unnecessary burden.

    In more anti-electronic sentiment, the Board proposes to get serious about keeping voter registration information (and the money the state can make from it) secure. Item #8 clarifies that the voter registration file, in part or in whole, “may not be placed for unrestricted access on the internet.” Item #8 replaces the current Class 2 misdemeanor penalty with a Class 6 felony designation and an additional civil penalty of up to $5,000.

    The Board of Elections does offer new parties a big favor in item #24 (pp. 11–12). Currently, to maintain official recognition and automatic ballot access, political parties must field candidates for Governor who win at least 2.5% of the general election vote. In 2014, the Constitution Party and Libertarian Party failed to nominate gubernatorial candidates and thus lost their party status and had to repetition this year. The Board of Elections proposes amending that rule (in the definition of “political party” in SDCL 12-1-3) to allow parties to keep their official recognition if any of their statewide candidates gets at least 2.5% of the November vote. In 2014, the Constitution and Libertarian parties did field candidates for Secretary of State, and both candidates won more than 2.5% of the November vote. Libertarian candidates also beat the 2.5% threshold in 2014 races for Attorney General, Treasurer, Auditor, and Commissioner of School and Public Lands, and the Constitution Party nominated a PUC candidate who drew 5%. Under the proposed rule, the Constitutionists and the Libertarians would have kept their party status after the 2014 election, even without a candidate for Governor. That seems a welcome accommodation for new parties who may not have the big money necessary to run an effective gubernatorial campaign but who do have candidates willing to take on the less expensive challenge of running for other statewide offices.

    Finally, on ballot measures, Secretary Krebs has put her frustration with the Pro/Con statements in the ballot question pamphlet into writing. Item #15 would strike the requirement in SDCL 12-13-23 that she obtain and publish statements from proponents and opponents of each ballot measure before the election. Instead, the Secretary would have to publish “the Attorney General’s title, explanation, and a clear and simple recitation of the effect of a ‘Yes’ or ‘No’ vote, and if applicable a prison or jail population estimate. The name, telephone number, mailing address, and email address of each petition sponsor and opposing party as determined by the secretary of state will also be included.” I disagree: publishing Pro/Con statements provides perhaps the only opportunity for proponents and opponents to address the voters on an equal footing, in which fairness the state has a reasonable interest.

    Secretary Krebs tells this blog that the proposals are still very much in draft stage (and really, everything is in draft stage until it hits the Legislative hopper). She says the Board of Elections will hold another public meeting to discuss these proposals further.



  • 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.



  • Board of Elections to Allow Registered Partisans to Run as Independents

    …and Krebs Still Scrubbing Gant Messes

    Meetings, meetings—the Board of Elections meets again today! After meeting just last week Monday to approve several proposals for changes to election law, Secretary of State Shantel Krebs is rounding up the gang for some clean-up.

    The only specific item on the agenda is to “Review draft of proposed amendment for SDCL 12-1-3(17).” As I noted in my weekend analysis of the Board’s seventeen legislative proposals, the Board last week proposed defining “independent” and “independent candidate” in our election statutes. Last Monday’s draft Proposal #6 defined “independent candidate” as “any registered voter who is not registered as a member of a recognized political party and who is a candidate for office.”

    Secretary Krebs reviewed that wording and realized it didn’t reflect the intention of the Board. Today the Board will consider amending Proposal #6 to define “independent candidate” thus:

    [N]otwithstanding the definition of independent as stated in this chapter, an independent candidate is any registered voter regardless of party affiliation who declares themselves to be an independent who is a candidate for public office [Draft Proposed Amendment for SDCL 12-1-3(17), South Dakota Board of Elections, posted 2015.10.27].

    Last Monday’s definition would have required anyone running as an independent to change his or her voter registration to independent. Today’s proposed amendment would allow, for example, a Republican who misses the deadline for submitting a partisan nominating petition to turn right around and circulate an independent nominating petition without forswearing her party affiliation.

    *     *    *

    While the matter is not on today’s agenda, Secretary Krebs also explained Proposal #11, the Board’s move to repeal SDCL 12-18-41, which allows the Secretary of State to conduct a local election when the local election chief and governing board declare that an emergency exists and the election cannot be conducted. The Legislature passed that law at then-Secretary of State Jason Gant’s urging in 2011. Gant’s office used it once, to run McPherson County’s primary in June 2012 after its auditor died in May. Nonetheless, Secretary Krebs says SDCL 12-18-41 creates the possibility that her 15-person office could end up having to run several local elections at once, a task for which its people are not specifically trained, even as they are expected to oversee a statewide primary or general election. Secretary Krebs also notes that SDCL 12-18-41 lays out no criteria for local officials to justify declaring that they cannot conduct an election.

    From Secretary Krebs’s explanation, one could conclude that former Secretary Gant’s proposal for state takeover of local elections was neither necessary nor wise. But unnecessary and unwise seems to describe Jason Gant’s entire legacy as Secretary of State. Left with such a mess, Secretary Krebs has been left with no choice but to work extra hard (like a second Board of Elections meeting in two weeks) to restore public trust.



  • Board of Elections Responds to SB 69 Referral, Errs in Ballot Question Committee Termination Proposal

    When South Dakotans successfully suspended Senate Bill 69 last summer and put it to a vote in 2016 as Referred Law 19, they created a kink in the election calendar. Another measure, Senate Bill 67, set the deadline for challenging nominating petitions as the third Tuesday in March. That deadline depended on SB 69’s petition submission deadline of the first Tuesday in March. Our successful referal of SB 69 means the petition submission deadline remains the last Tuesday in March, which means that SB 67, now SDCL 12-1-3, makes it impossible to challenge 2016 petitions submitted between March 16 and March 29.

    Governor Dennis Daugaard could have avoided this problem by vetoing both bills. He chose not to listen to me.

    Secretary of State Shantel Krebs is listening. As Bob Mercer points out, Secretary Krebs and the Board of Elections are proposing that the Legislature repeal the challenge deadline set by SB 67. That’s a simple, positive step for the Legislature to take; let’s hope that Senator Ernie Otten (R-6/Tea) and the other Republicans who tried to make mischief with SB 69 this year don’t view this sensible repeal as a hoghouse vehicle to resurrect the anti-democratic ideas that South Dakota voters froze this summer.

    That’s just one (#7) out of seventeen proposals that the Board of Elections drafted Monday. The board is also resurrecting one of SB 69’s provisions. Repeating the language of Section 22 of SB 69, Proposal #6 innocuously defines “Independent,” which apparently has slipped by undefined in South Dakota election law for 126 years. “Independent (IND)” and “no party affiliation (NPA)” will apply synonymously to “any voter who writes Independent, I, Ind, the field is blank, no party affiliation, no party, no choice, nonpartisan, or line crossed off in the Choice of Party field on the voter registration form.” Proposal #6 also clarifies that an “independent candidate” must not be “registered as a member of a recognized political party.”

    Proposal #11 would strike SDCL 12-18-41, which allows the Secretary of State to conduct a local election when the local election chief and governing board declare that an emergency exists and the election cannot be conducted. The Legislature passed this law in 2011. Whether this change affects anything in practice is hard to say: local officials still must have the authority to declare that it’s too snowy to ask everyone to come to the polls, and the Secretary must still have the authority and obligation to help local districts conduct their elections.

    Proposal #12 eliminates the requirement that individuals forming a political committee include the name of their committee’s bank on their statement of organization. I’d have found that helpful back in March when I filed the paperwork to start the referendum drives against SB 69 and against SB 177, the youth minimum wage. I didn’t even have money for those petition drives, let alone a bank account in which to put it.

    However, Proposal #13 adds some paperwork for ballot question committees. The Board of Elections would require termination reports be filed by the first Monday in February (in the even year if the committee fails to get its measure on the ballot; in the odd year, right after the election, if they do make the ballot). This proposal is unusual—no other political committee is required to pull its own plug. It is also problematic: the proposal assumes that ballot question committees will have completed all of their business by that February deadline. A ballot question committee may still be taking donations to pay off debts three months after the election. Current statute on termination statements (SDCL 12-27-25, which would conflict with the change Proposal #13 would make to SDCL 12-27-22) recognizes this possibility and does not require committees to file termination statements until “thirty days following disposition of all funds and property and the payment of all obligations.”

    Proposal #13 also fails to recognize the possibility that a ballot question committee might want to take another shot at a ballot measure in the next election. Suppose South Dakotans Against Prohibition fails to place its marijuana decriminalization initiative on the 2016 ballot. Or suppose New Approach South Dakota places its medical marijuana initiative on the 2016 ballot but fails to win the vote. Both organizations might want to try again in 2018. Why require them to terminate and re-register?

    Likewise my own ballot question committees. Suppose South Dakotans for Fair Elections successfully defeats Referred Law 19 and SD VOICE successfully defeats Referred Law 20. I suspect hard-headed Senators Otten and David Novstrup (R-3/Aberdeen), if they survive the 2016 election, will pass more anti-voter and anti-worker bills. Maybe I need to keep those two ballot question committees as vehicles for the 2018 campaign against Otten’s and Novstrup’s next follies. I already have checking accounts for both of those committees; I might find it as practical to keep my ballot question committees open as Dennis Daugaard does to keep his campaign committee on the books, even though his people have said 2014 was his last election. (And believe me, after the weeks it took to get Wells Fargo to create those checking accounts, I don’t want to have to go through that process again if I don’t have to!)

    None of the Board of Elections’ proposals are as momentous as the petition reforms they proposed last year. None do the damage that the Legislature’s perversions of their Senate Bill 69 would have wrought. Proposal #7, repealing SB 67, makes sense and should happen right away. Proposal #13, Requiring ballot question committees to terminate, is an unlucky idea that conflicts with existing statute and unduly crimps the work of initiative and referendum advocates.