This week’s Don’t Give Up Award goes not to Rep. Fred Deutsch, who grimly promised today to spend all summer coming up with a stronger, better, faster way to punish transgender kids for being themselves next Session (assuming he wins reëlection) but to New Approach South Dakota chief Melissa Mentele, leader of the effort to legalize medical cannabis in South Dakota.
When Secretary of State Shantel Krebs rejected New Approach SD’s petition to put medical cannabis to a statewide vote, Mentele scrambled her troops and convinced legislators to write her detailed 95-section initiative into a bill. Now that the Legislature has decimated that comprehensive proposal into a three-section pilot plan legalizing cannabis derivative (cannabidiol) for treatment of one malady (intractable epilepsy), Mentele is taking one last shot at putting her initiative to a vote: she’s formally challenging the Secretary’s ruling on her petition.
Mentele submitted this challenge affidavit this afternoon, during the final hour of the thirty-day challenge window for her petition. The 14 pages consist mostly of petition lines from the Secretary’s random sample that the Secretary invalidated but which Mentele contends should count. Let’s look at the first and last pages of the affidavit to see the meat of the challenge argument:
Now I’ve been trying to do some math to figure out what the challenge needs to establish to reverse the Secretary’s rejection. According to press reports, the Secretary calculated 16,543 submitted signatures on the medical marijuana petition. By statute, the Secretary checks a 5% random sample of the submitted signatures for valid voter ID and complete petition information. 5% of 16,543 is 828 signatures.
Mentele shared with me the Secretary’s check sheet. It shows a sample of 988 checked signatures. That’s a 6% sample. Checking a random 6% sample of the signatures seems harmless, perhaps even a better guarantee that the Secretary properly evaluates the quality of the petition, but Mentele argues that a 6% sample is illegal and thus invalid. Since we can’t just chop off the last page or two of the check sheet and maintain the required randomness of the sample, Mentele argues that the Secretary needs to at least throw out her initial rejection and re-sample the petition.
Amidst that oversample, Mentele also claims to find evidence of gross error on the part of the Secretary in throwing out voters. Mentele’s affidavit lists 91 voters rejected as not appearing on the voter rolls who allegedly do appear in the voter rolls. If (if, if!) the Secretary of State’s office misidentified one out of eleven registered voters as not registered on a petition, imagine what could happen at the polls in June and November. Mentele’s affidavit contends that error rate in itself calls for redoing the certification process on the medical marijuana petition.
Mentele identifies even more valid signatures that were rejected due to notary error. Many of those errors were the absence of a year on the notarization or notary expiration date.
Notaries, notaries, notaries—get these things right.
Petitioners, petitioners, petitioners—check that your notaries get these things right.
You readers know that I’m a stickler for following the petition rules to keep fraud off the ballot. But Mentele cites SDCL 12-1-11, which says petitions “shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.”
Secretary Krebs may stick to her rules and leave it to the courts to provide any liberal construal to save Mentele’s petition bacon. The Secretary’s press release (and you know where you can find press releases) reminds us she has no statutory deadline to rule on the challenge. Her only real deadline is August 16, the day by which she must certify copies of all ballot questions to the county auditors. Theoretically, she may want to be fair to all parties and issue rulings on all three pending petition challenges (Mentele’s, mine, and the pathetically weak payday lenders‘) by May to give disappointed parties time to seek satisfaction in court.
Due to uncertainty about sample size, I can’t tell if Mentele has the numbers to win this challenge. But she certainly has determination to bring a comprehensive medical cannabis plan to the voters of South Dakota.