• Tag Archives Kea Warne
  • Deputy SOS Explains Voter Purge Process

    I was hoping to the Secretary of State’s office could break down the list of voters purged from the active voting rolls over the summer by party affiliation. That way we could determine whether the substantially greater decrease in Democratic registration compared to Republican and independent registration was a result of the Republican Secretary of State striking more members of the loyal opposition from the registration list or if the purge showed no sign of partisan bias and the Democratic drop was related more to other factors, like more new voters signing up as Republicans and independents and thus reducing those groups’ net losses.

    Alas, Deputy Secretary of State Kea Warne informs me that in following the federally required voter list maintenance, the office does not keep track of party affiliation of purged voters. (Nertz! There’s another potentially interesting spreadsheet down the tubes.)

    DSOS Warne does provide a handy review of the timeline for dropping voters from the rolls:

    South Dakota’s 66 County Auditors conduct Voter List Maintenance pursuant to the Federal National Voter Registration Act.

    The National Voter Registration Act (NVRA) requires voter registration file maintenance procedures to be conducted every odd-numbered year between January 1st and November 15th. The maintenance procedures identify and remove the names of those individuals who are no longer eligible to vote. The process takes a total of eight years (four general election cycles) of not voting, not updating their voter registration or responding to a previous list maintenance mailing before a voter can be purged from the voter file. A voter can stay on the active voter registration list for 4 years (through two general elections) with no activity before being moved to the inactive list. A voter will then remain on the inactive voter registration list for another 4 years (through two more general elections) with no activity before being purged from the voter file. There are required mailings that must be sent to a voter prior to being moved to the inactive file and again prior to being purged from the voter file.

    All voters listed on the inactive voter registration list can still vote a regular ballot but prior to voting a ballot that voter must fill out a voter registration form so that voter’s registration record can be updated and the voter will be moved to active status for the next election. The inactive voter will only be given a ballot that he/she is currently registered for. If the voter changes the political party or an updated address moves them to another district, the voter can only vote on the ballot designated to him/her on that registration list for that election [link added; Deputy Secretary of State Kea Warne, e-mail to Dakota Free Press, 2017.09.05].

    In other words, Warne confirms what I mentioned in the comment section under my previous post on the summer purge: a voter who doesn’t show up for two general elections (or any primary, special, or local election during those two cycles) gets moved from Active to Inactive. A voter who doesn’t show up through two more election cycles goes from Inactive to totally purged. Before each status change, the county auditor sends a double postcard with a reply form to the address on the voter’s most recent registration form. The county auditor only changes the voter’s status after 30 days with no reply.

    The relevant state statutes are the following:

    • 12-4-19      Confirmation mailing to voters who fail to reply to a confirmation mailing–Exception.
    • 12-4-19.1      Confirmation mailing notice to registrant of proposed registration cancellation–Postcard and return card–Contents.
    • 12-4-19.2      Placement in inactive registration file by auditor.
    • 12-4-19.4      Cancellation of voter registration.


  • Medical Cannabis Petition Fails on Rampant Notary Error; Further Challenge Must Go to Court

    The “recount” and second rejection of the medical cannabis petition raised a few legal questions about the status of that petition and the process that led Secretary Krebs to uphold its rejection. Secretary of State Shantel Krebs and Deputy Secretary of State Kea Warne took time yesterday afternoon to answer those questions for Dakota Free Press.

    First, Deputy Secretary Warne confirmed that a “recount” took place. I keep putting that term in quotes, since there is no statutory term for this “rare” (that’s Warne’s word; I can’t think of a precedent) action. The Secretary of State’s office affirmed the claim in petition sponsor Melissa Mentele’s March 3 challenge that the Secretary had sampled 6% of the signatures in her petition rather than the 5% required by law and administrative rule. The Secretary visited with Attorney General Marty Jackley, who advised the Secretary to conduct another random sample, which was one of three alternative remedies proposed in Mentele’s challenge.

    Warne said the oversample of the first review resulted from incorrectly counting signatures drawn twice in the random sample. I’m not sure how one gets duplicates in a random sort of a spreadsheet: you make a copy of your data, enter the RAND() function in an adjacent cell, Fill Down with that RAND() to the bottom of your data, Select All, Sort by your RAND() column, and then grab the entries at the top of the Sorted heap for your 5% sample. Easy-peasy—no duplicates!

    Duplicates persisted in the second sample, but this time the Secretary of State’s team counted more carefully, struck thirty repeaters, and pulled up thirty more entries to flesh out the necessary 5% sample, or in this case, 827 signatures out of 16,543 submitted. (Interesting: the Secretary rounded down. 5% of 16,543 is 827.15.)

    This second sample does not reopen the window for Mentele or other interested parties to challenge the petition rejection in the Secretary of State’s office. I could argue that the oversample in the first count means the first count has no legal force and that the 30-day challenge window of SDCL 12-1-13 can only be triggered by the legally binding action of the recount just filed by the Secretary. However, the Secretary’s office asked the Attorney General about that very question, and the Attorney General said no! The first count happened. Mentele’s challenge asked for a recount. The Secretary responded to that challenge by conducting a recount. The SOS-challenge process has been exhausted; any further challenge has to go to circuit court.

    The recount found 92 signatures out of 827 did not belong to registered voters. Had those been the only errors, the Secretary would have calculated Mentele’s petition to have 14,702 valid signatures, more than the 13,871 threshold and enough to qualify for the ballot. But the Secretary threw out an additional 359 signatures from the sample based on “Notary Issues,” most of which consisted of the notary writing her commission expiration date in an incomplete fashion. For example, one petition sheet shows a notary commission expiration date of “5/17”. On a purely facial review of the petition (the Secretary’s team did not look up notaries in their database), that inscription could mean “May 2017” or “May 17th” (or “Sol Jovis, 5 Leo” on Mars). Either way, it’s incomplete and indiscernible, and the notary’s failure to write a complete and discernible date nukes every signature on the sheet.

    SDCL 2-1-11 says petitions “shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.” Overturning those 359 signatures on a notary not writing a full date seems to exemplify technicality defeating voter intention. However, if the medical cannabis petitioners want that liberal construal, they’ll have to get it from a judge, not from the Secretary of State.

    Note also that even if the petitioners got a judge to restore all 359 of those notary issue rejections, that restoration would raise the total valid signatures in the sample from 299 to 658. That’s a 79.56% validity rate; Mentele and friends need an 83.85% validity rate to get on the ballot. They need to find another 36 signatures on top of the 359 rejected for notary issues to beat the recount and put their measure on the ballot.

    Or they could just go through their entire petition one more time, count up all the registered voters, and say, “Look, judge: 13,871 registered voters, plus extra. Put us on the ballot.”

    Court challenges to any of the Secretary of State’s ballot measure petition rulings must be resolved by August 16, the deadline for the Secretary to certify ballot measures to our county auditors.



  • Deputy SOS Warne Warns Petition Circulators: Follow the Rules!

    In response to a flurry of questions and complaints arising this week over questionable activities by individuals and organizations promoting ballot initiatives, the Secretary of State’s office yesterday e-mailed the following lengthy reminder of the laws governing the circulation of petitions. I apologize for sounding like the press release blog, but I quote in full, since this information from state government really is useful. I have added hyperlinks but maintained emphasis from the original:

    We have received a number of emails and calls this week regarding petition circulators and we thought it would be best to email all of you with our response to these questions.

    State law requires the petition circulator to witness each voter signing the petition.

    SDCL  2-1-10.   Verification of persons circulating initiative or referendum petitions–Form and content–Violation as misdemeanor. Each person, who circulates and secures signatures to a petition to initiate a constitutional amendment or other measure or to refer legislation to the electors, shall sign a verification before filing the petition with the officer in whose office it is by law required to be filed. The verification shall prescribe that the circulator made reasonable inquiry and, to the best of the circulator’s knowledge, each person signing the petition is a qualified voter of the state in the county indicated on the signature line and that no state statute regarding the circulation of petitions was knowingly violated. The State Board of Elections shall prescribe the form for the verification. The verification shall be complete and the affixing of the circulator’s signature shall be witnessed and notarized by a notary public commissioned in South Dakota or other officer authorized to administer oaths pursuant to § 18-3-1. Any person who falsely swears to the verification provided for in this section is guilty of a Class 1 misdemeanor.

    State law requires a petition circulator to be at least the age of 18 and a resident of South Dakota.

    SDCL 12-1-3 (9) Definition of terms used in title. Terms used in this title mean:

    (9)   “Petition circulator,” a resident of the State of South Dakota who is at least eighteen years of age who circulates nominating petitions or other petitions for the purpose of placing candidates or issues on any election ballot;

    State law requires petition circulators for initiated constitutional amendments and initiated measures to offer to each person who has signed the petition a form which will include the Attorney General’s Title and Explanation on it.  If the signer does not want to take a copy of this form that is ok.

    SDCL  2-1-1.1.   Petition to be circulated for initiated constitutional amendment–Time for signatures and filing. The petition as it is to be circulated for an initiated constitutional amendment shall be filed with the secretary of state prior to circulation for signatures and shall:

    1. Contain the full text of the initiated constitutional amendment;
    2. Contain the date of the general election at which the initiated constitutional amendment is to be submitted;
    3. Contain the title and explanation as prepared by the attorney general;
    4. Be accompanied by a notarized form that includes the names and addresses of the petition sponsors; and
    5. Be accompanied by a statement of organization as provided in § 12-27-6.

     The petition circulator shall provide to each person who signs the petition a form containing the title and explanation of the initiated constitutional amendment as prepared by the attorney general. The form shall be approved by the secretary of state prior to circulation.

    For any initiated constitutional amendment petition, no signatures may be obtained more than twenty-four months preceding the general election that was designated at the time of filing of the full text. The initiated constitutional amendment petition shall be filed with the secretary of state at least one year before the next general election. A sworn affidavit, signed by at least two-thirds of the petition sponsors, stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state. The form of the petition and affidavit shall be prescribed by the State Board of Elections.

    SDCL 2-1-1.2.   Petition to be circulated for initiated measure–Time for signatures and filing. The petition as it is to be circulated for an initiated measure shall be filed with the secretary of state prior to circulation for signatures and shall:

    1. Contain the full text of the initiated measure;
    2. Contain the date of the general election at which the initiated measure is to be submitted;
    3. Contain the title and explanation as prepared by the attorney general;
    4. Be accompanied by a notarized form that includes the names and addresses of the petition sponsors; and
    5. Be accompanied by a statement of organization as provided in § 12-27-6.

    The petition circulator shall provide to each person who signs the petition a form containing the title and explanation of the initiated measure as prepared by the attorney general. The form shall be approved by the secretary of state prior to circulation.

    For any initiated measure petition, no signatures may be obtained more than twenty-four months preceding the general election that was designated at the time of filing of the full text. The initiated measure petition shall be filed with the secretary of state at least one year before the next general election. A sworn affidavit, signed by at least two-thirds of the petition sponsors, stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state. The form of the petition and affidavit shall be prescribed by the State Board of Elections.

    Petition circulator employment and compensation:

    SDCL  12-13-28.   Employment and compensation of petition circulators. No person may employ, reward, or compensate any person to circulate a petition for an initiated measure, referred law, or proposed amendment to the South Dakota Constitution based on the number of registered voters who signed the petition. Nothing in this section prohibits any person from employing a petition circulator based on one of the following practices:

    1. Paying an hourly wage or salary;
    2. Establishing either express or implied minimum signature requirements for the petition circulator;
    3. Terminating the petition circulator’s employment, if the petition circulator fails to meet certain productivity requirements; and
    4. Paying discretionary bonuses based on reliability, longevity, and productivity.

    Any violation of this section is a Class 2 misdemeanor.

    Challenges on the petition circulator not witnessing the signers sign the petition, not being a SD resident and not providing the form which includes the AG’s title and explanation to each signer who signs the petition, can be done through the court system.  

    I have attached the How to Circulate a Statewide Ballot Petition pamphlet which includes this information and a good resource to provide to each of your petition circulators.

    Just a reminder that all statewide ballot measures are due in our office no later than 5:00 PM CT on November 9, 2015.  All petitions received after this date and time will not be validated/filed.  A sworn affidavit, signed by at least two-thirds of the petition sponsors, stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state when you submit the petitions.  I have attached a copy of this affidavit for your reference [Kea Warne, Deputy Secretary of State, e-mail to petition organizers, 2015.09.17].

    Deputy Secretary Warne serves the public well with this stern reminder of the rules for petitions. If we want to preserve and promote our democratic right to make laws through popular vote, we must follow the the law. Failing to follow these rules casts mistrust over the entire process and deters citizens from signing our petitions.

    However, one portion of this official statement alarms me. Even in the midst of increasing evidence that some petitioners are using illegal tactics to gain access to the ballot for their causes, the Secretary of State’s office indicates that accountability for petition violations will have to come from citizens filing challenges in court, not from our elected officials and law enforcement acting on the evidence of wrongdoing presented to them right now. If the illegal tactics mentioned in Deputy Secretary Warne’s e-mail are misdemeanors, and citizens report credible evidence of those misdemeanors to law enforcement, can law enforcement agents not act on that evidence to stop those misdemeanors?

    Stay tuned: with ten initiative petitions circulating and an eleventh on its way (Local 49 filed its ballot committee statement of organization Wednesday), competition for signatures is keen, and petitioners will be watching each other closely for illegal tactics that could jeopardize not just individual ballot measures but the public trust in the entire initiative process.