Oaths matter. Oaths really, really matter.
Such is the conclusion to be drawn from Judge Mark Salter’s rejection of the petition filed by Bruce Danielson and neighbors to put funding of the new municipal administration building in Sioux Falls. Last month, Sioux Falls city clerk Tom Greco tossed Danielson’s municipal initiative petition because Danielson used a petition form with the statewide initiative petition circulator’s oath instead of the municipal petition oath.
The core of Judge Salter’s ruling is SDCL 9-20-9:
Any person circulating an initiative or referendum petition shall verify that each person signing the petition is a resident and qualified voter of the municipality. The State Board of Elections shall promulgate rules pursuant to chapter 1-26 prescribing the format for an initiative and referendum petition and its verification.
“Verify[ing] that each person signing the petition is a resident and qualified voter of the municipality” does not mean asking signers where they live and whether they are registered. It means swearing the oath prescribed by the State Board of Elections. The oath prescribed for municipal petitions includes this clause:
…I attest the legality of the signatures and that each person signing this petition is a resident and qualified voter of the municipality of ____.
The statewide oath on the petition sheets Danielson submitted has this language instead:
…that I made reasonable inquiry and to the best of my knowledge each person signing the petition is a qualified voter in the county indicated on the signature line, that no state statute regarding petition circulation was knowingly violated….
The petitioners argued that they “substantially complied” with the law in seeking signatures from Sioux Falls voters. Indeed, no one has demonstrated that Team Danielson sought to pad its signature count by seeking signatures from non-Sioux Falls voters. Clerk Greco’s own review of the petition found sufficient local signatures to validate the petition if the oath hadn’t fouled things up.
But Judge Salter doesn’t ask whether the petitioners substantially complied with the signature requirements. He asks whether the petitioners substantially complied with the requirement to swear the municipal initiative petition oath by swearing the statewide initiative petition oath. Judge Salter says that swearing the latter does not substantially comply with swearing the former.
Judge Salter cites previous cases in which petitions were tossed for swearing the circulator’s oath after filing the petition (Burns v. Kurtenbach 1982) and for filing a nominating petition with the road district secretary instead of the road district clerk (State v. Jensen 2003).
Absent from Judge Salter’s ruling is any mention of SDCL 2-1-11, which requires that statewide petitions be “liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.” Evidently there is no such corresponding statute pertaining to municipal petitions… and, more importantly, Judge Salter does not consider this oath foul-up a mere technicality. He notes that testimony shows it was an error on the lead petitioner’s part:
Lest there be any confusion over the actual facts presented here, the evidence at the September 28th hearing established this was not an instance in which the Petitioners learned belatedly that they had simply used the wrong form. Danielson knew he had obtained the Statewide Form and not the correct Municipal Form when he began his petition effort in late July. In fact, he revised the front page of the Statewide Form to conform to the Municipal Form even before registering it with Greco’s office. Danielson overlooked, however, the necessity of including a circulator’s verification oath that conformed to SDCL § 9-20-9’s requirements. These observations are not offered as a criticism, but rather for the purpose of providing an accurate account of the evidence submitted at the September 28th hearing [Judge Mark Salter, “Memorandum Opinion and Order, Findings of Fact and Conclusions of Law,” Danielson and Staggers v. Greco, 2016.09.29; reported in Joe Sneve, “Judge Rules in Favor of City in Admin Building Case,” that Sioux Falls paper, 2016.09.29].
Incorrect language in a circulator’s oath may feel like a mere technicality that should not defeat the real intention of the petitioners. Indeed, no one appears to have attempted to have committed any fraud against the voters or the city. Danielson and his team knew they needed Sioux Falls voter signatures and collected 6,400 such signatures.
But Judge Salter says the law requires a very specific oath, and in this case, nothing but that oath will do. Sioux Falls voters thus miss out on a chance to vote on a significant public project.