Last updated on 2017-06-19
On Wednesday, I challenged Lisa Furlong’s (or should we just call it Rod Aycox’s now, since his Georgia-based company provided all of the $1.7 million necessary to muscle this trick onto the ballot?) fake 18% rate cap petition. On Friday, KELO-TV tried to explain what that challenge was about to its audience. KELO-TV did… o.k.
First, their Aberdeen reporter Erich Schaffhauser dropped by to chat and get an official copy of the challenge affidavit. Schaffhauser properly spotlighted the crux of the challenge:
“Oaths matter. Petitions matter. The integrity of elections matter. We want to make sure when we put things on the ballot, they get there legally, following the rules,” [Cory Allen] Heidelberger said.
He argues that didn’t happen with Amendment U. In an affidavit submitted to the Secretary of State this week, Heidelberger outlined issues he says make signatures invalid [Erich Schaffhauser, “Secretary of State Reviewing Challenged Petitions,” KELO-TV, 2016.02.05].
Schaffhauser didn’t go into detail on those issues; instead, he lumped them in with the issues raised on the laughably weak challenge brought by payday-lender dupes against the real 36% rate cap petition. I ought to take umbrage, but I’m content that Schaffhauser gave the issue the attention he did.
Angela Kennecke didn’t come to my house, but she picked up the story and started connecting dots. KELO and other media documented the mafia-like intimidation tactics used by the payday lenders last summer against petition sponsor Steve Hildebrand and his café customers. Kennecke caught out-of-staters breaking the law and circulating fake 18% petitions back in September; my readers and I found suspicious and deceitful petition circulators in Brookings, Rapid City, Vermillion, and Aberdeen. Kennecke recognizes that my challenge contends the pattern of dirty tricks flows right into the petition itself:
These are all reasons why Political Blogger Corey Heidelberger has filed an affidavit with the Secretary of State’s office challenging the petitions used to get the Constitutional Amendment U on the ballot.
“Are any of the dirty tricks visible on the petition itself? And low and behold, it looks like it. And I’m not going to stand by and have rich corporations from out of state use dirty tricks to get on our ballot and abuse the constitution or the people of South Dakota,” Heidelberger said.
After reviewing nearly 5,000 pages of the petition, Heidelberger says he found pages and pages of violations that render signatures invalid. Notaries used North American Title Loan as their permanent address. Heidelberger also alleges that some signatures were forged, several petitions were certified before they were circulated and names of petition circulators don’t match [Angela Kennecke, “Petition Challenge to Stop Payday Lender-Backed Amendment,” KELO-TV, 2016.02.05].
Kennecke still can’t spell my name. I’ll survive.
Kennecke includes that link to my petition challenge in her original story. KELO-TV doesn’t use links very much, and almost never to other South Dakota media. I appreciate that nod toward the blog ethos of linking so readers can see for themselves. Links make news stories better.
Kennecke doesn’t quite get the evidence from my challenge right. Let’s be clear:
- My affidavit points out that the addresses associated with frequent petition notaries Antonio J. Puga III and Erin Ageton in the Secretary of State’s notary database are North American Title Loan storefronts (see paragraphs 6 and 15). My affidavit does not claim that those facts render any signatures invalid. My affidavit includes those facts to help the Secretary and law enforcement find those notaries to ask questions, as well as to point out the connection between notaries who violated the rules and the corporation that paid for this petition drive.
- My affidavit does not allege forgery of signatures. The word forgery does not appear in my affidavit. My affidavit contends that the penmanship of certain information on several lines of the petition does not match the penmanship of the signers or the sworn circulator, the only people authorized to write such information on the petition.
But I get it: such details of petition rules are hard to explain in two minutes of television. I’ll survive that, too, because really, I only need two people in South Dakota right now to understand the arguments my affidavit makes: Secretary of State Shantel Krebs and Attorney General Marty Jackley.
Kennecke focuses on what matters for the general public:
“We want to make sure when South Dakotans get a chance to vote on things, they’re voting on legitimate measure. They aren’t being tricked. They aren’t being lied to; they aren’t being taken advantage of and someone hasn’t broken the law to get their vote,” Heidelberger said [Kennecke, 2016.02.05].
That’s the real story. The Furlong/Aycox petition exhibits a pattern of deliberate petition fraud far more extensive and systematic than the petition violations that hung Annette Bosworth and Chad Haber. The petition fraud here exceeds that of Clayton Walker’s looniness. The evidence on the Furlong/Aycox petition suggests a willful effort by multiple parties bankrolled by the payday lending industry to scam their way onto the South Dakota ballot.
Lisa Furlong has submitted a petition rife with evidence of criminal activity capping the already documented unseemly behavior of her circulators all around South Dakota. This petition is a fraud, and we must not let fraud onto our ballot.
I did warn you about the robber barons and the lengths to which they may go.
This is a serious violation of trust compared to the hundreds or thousands of false certifications to witnessing petition signatures over the last 100 years. Go get “em Cory. It would be an appropriate action of all in SD to clear up this issue rather than “hang” Bosworth!
Rod, those who are hung are already hung, over and done. This is a new hangin’, for a worse crime against the electorate.
My my my! What fun there is in front of us as (and if) this reaches the trial stage.
News reporters will, at last, be able to watch the illusive sock puppet Lisa Furlong on TV responding to questions and giving answers. The lovely Erin Ageton will no doubt also be swept into the dragnet and make her appearance on our TV screens. They’re going to be connecting who hired the petition signers, their real addresses, who set up the fake claims of residence, who really bankrolled this farce on South Dakota, the intimate ties to the farcical Marcy’s Law ballot drive and a lot of other dots. I suspect any kind of deep inspection of how that ballot drive was conducted will reveal some well known SDGOP operatives working together and using the petition and initiative process as their campaign cash cow in the 2016 cycle.
Cory, you’ve got more faith in Marty Jackley than I do. I suspect this issue will dovetail with the Protected Class of people that seems to have immunity from South Dakota’s justice system. But I will keep the faith. Soldier on, Mr. Heidelberger!
Thank you Corey for everything you do!
96, I can only draw the analogy between the Bosworth-Haber violations and these. Bosworth had fewer violations on her petition, yet Jackley acted when presented with simple, straightforward evidence of illegal activity. The Furlong petition has far more evidence of more violations. I would think precedent would compel the Attorney General to investigate and prosecute.
If Jackley doesn’t rip after them with at least the same zeal, I wonder if Walker, Haber and Bosworth would have a case to sue the Attorney General for prejudicial prosecutions.
96, are convicts ever allowed to sue the prosecutor just because the prosecutor didn’t prosecute someone else who broke the law? Do such convicts even have standing?
I doubt fear of a lawsuit would drive Mr. Jackley to take action… but if the opinions of many pundits are to believed and if Jackley does have his eye on the Governor’s office it would probably behoove him to step up to the plate rather than allowing law breakers to get a free pass.
I’m certain he wouldn’t want the appearance of favoritism to be used against him, and I’m doubtful he would want to appear to be taking the side of payday lenders. I’m sure if there is ample evidence of wrongdoing that he will take action – the question is will that action occur before any ballots are cast.
Although you asked 96, I’ll pipe in for a second. No convict may sue a prosecutor for choosing not to prosecute another person. The prosecutor has immunity from such suits.
But if a defendant, or a convict, can establish “selective prosecution” based on a protected factor, then that can constitute a defense or a ground for habeas relief after conviction. For example, if 20 people commit a similar crime but the prosecutor chooses to prosecute the only black defendant because of the prosecutor’s proven racial bias against blacks, then that defendant could argue that the prosecutor violated his constitutional right to equal protection of the law or due process. This is an incredibly tough burden because evidence of racial bias by prosecutors is difficult to prove.
Here is a research article explaining the concept of selective prosecution and the difficulty in establishing the facts to raise it as a defense:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6926&context=jclc
“Protected factor”—ah! Basically, the defendant needs to show she was prosecuted because she’s black, or a woman, or lesbian, or Muslim, or something like that, right?
But what “protected factor” would apply to Walker, Haber, and/or Bosworth? They can’t point to any recognized minority status. They have to show that they we targeted because of membership in some class, not just targeted personally, right?
The language used by the Supreme Court indicates that if the decision to prosecute is based on “an unjustifiable standard such as race, religion, or other arbitrary classification” then a selective prosecution defense could be sustained.
I am unaware of any basis for Walker, Haber or Boswell to raise the defense. Even if they could show the prosecutor disliked them personally, or that many other people committed the same type of crime without being prosecuted, that is insufficient. They would have to show they were prosecuted because of their membership in a protected group (race or religion) or because they were members of some other identifiable group arbitrarily picked out by the prosecution.