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Challenge Prompts Krebs to Recheck Medical Cannabis Petition

Kinda surprising: Melissa Mentele’s filing of an affidavit to challenge Secretary of State Shantel Krebs’s rejection of her medical cannabis initiative petition.

Really surprising: Secretary Krebs’s almost immediate decision to recheck the petition:

South Dakota Secretary of State Shantel Krebs said in a Friday afternoon telephone interview, her second interview of the day with the Journal, that she had the chance to read the complaint, and her office will conduct a new 5 percent random sampling of the signatures for the medical marijuana ballot measure “in order to maintain the confidence in the petition process.”

“We feel it is the right thing to do,” Krebs said.

She said the new random sampling will be conducted within 30 days [Chris Huber, “Complaint Wins Medical Marijuana Measure Another Chance at the November Ballot,” Rapid City Journal, 2016.03.05].

The Secretary’s decision appears to be motivated by two facts. First, the Secretary’s initial petition review appears to have declared unregistered dozens of registered voters. The Secretary is not admitting in the press that any such widespread error took place and questions whether Mentele’s team has an accurate voter list. Mentele tells both the Rapid City Journal and me that her voter registration list is solid.

Second, the Secretary acknowledges that her office took a larger random sample of the Medical cannabis petition signatures than prescribed by law:

“We are trying to give them benefit of the doubt, and we wanted to err on the side of caution,” Krebs said. She said the thought process was that because the number of signatures collected was not much higher than the number needed, a larger sample size for a spot check would be more fair to the sponsors of the petition [Huber, 2016.03.05].

Secretary Krebs’s statement is mathematically and morally correct. Legally, however, Mentele’s challenge appears to make a reasonable argument: if statute authorizes a 5% sample and the Secretary takes a 6% sample, that 6% sample is… extra-statutory.

That statutory argument could be the only legal basis on which Secretary Krebs can take this remarkable step of resampling Mentele’s initiative petition. Statute authorizes (and rule assumesone random 5% sample, not two samples  and an averaging or selection of the better of the two results. It may be that the only way Secretary Krebs can conduct a new 5% sample next week is if we declare that the old sample never happened and that her February 3 rejection of the medical cannabis never happened.

Of course, if we take that position—there was no sample, there was no rejection—then is there any challenge? Does Secretary Krebs have to carry out her statutory obligation to respond to the Mentele challenge with a “written declaration regarding the validity of the signatures in question“? Or is the challenge as null and void as the extra-statutory sample?

Don’t get me wrong: I’m glad Secretary Krebs has announced this recheck. Presented with evidence of a flawed random sample, she’s saying, “O.K., let’s do it again and do it right.” The flaws have to do with ensuring the integrity of the voter registration file, which impacts not only the verification of petition signatures (more of which the Secretary will be receiving from eager candidates over the next three weeks) but voter identification at the polls in this year’s elections. The Secretary can recheck the medical cannabis petition, but she also needs to review the original check, figure out whether and how registered voters were deemed unregistered by her office, and make sure those errors do not result in election officials turning any registered voters away from the polls.

p.s.: We should also note that, while I filed my petition challenge against fake 18% rate cap petition on February 3 and haven’t heard bupkis about her progress on reviewing my affidavit, Melissa Mentele files an affidavit and gets Secretarial action within 24 hours. What am I, chopped bullhead? ;-)


  1. Happy Camper 2016-03-06 09:24

    But how will she interpret the notary dates without a year? If the law says to be liberal and she wasn’t then she’s picking and choosing.

  2. mike 2016-03-06 10:14

    1. As a supporter of Medical Marijuana I have a few thoughts. First off how did you become the best political reporter in the state of SD in your spare time?

    2. Kudos to SOS Krebs for erring on the side of the petition circulators. She is a breath of fresh air.

    3. Mentelle makes some interesting statements that need much more follow up.
    From RCJ: “Signature gatherers for the measure had an application on their smartphones called “Can I vote.” If there was even a question of whether a person was registered, the gatherer had that person input his or her name, birthday and address to check registration information.”

    If I go to the website and select SD it takes me to the website where I need to know the individuals birthdate. I have a really hard time believing that she had all of the birthdates of the individuals selected for a 5% random sampling. Is she saying that that is how she found errors – How did she get the birthdates again to double check once the sample was completed?

    4. The other concern I have with her statement is does she ever say who she got the voter registration file from? These are fairly important things for us to know about her statements. It could be old. It could be incomplete. Why doesn’t the RCJ insist on knowing this? Who is the third party?

    Conclusion also sounds like she wants very liberal interpretation of the law which I have a hard time supporting after the Bosworth fiasco last fall. Either our rules mean something or they don’t.

  3. caheidelberger Post author | 2016-03-06 10:47

    And I’m torn there, Hap. The document needs to stand on its own, meaning I need to look at it and be able to establish that, yup, signed and notarized on 11/1/2015. If someone (a notary, for Pete’s sake, someone who should issuing that stamp with the strictest attention to detail) doesn’t put the full date on the paper, how do I know whether that paper was signed during the proper time?

    Of course, one can argue that since the paper didn’t exist prior to 2015, and that it was submitted to the Secretary’s office in 2015, there can be no other logical conclusion than that the paper was signed in 2015.

    The legal answer is this: the Secretary certifies or rejects petitions based on rules that demand completeness. Absence of the year is fairly read as incompleteness. The Secretary can justifiably throw out a signature or a sheet for incomplete information. The court can declare that incompleteness a technicality unfairly negating the clear will of a voter/signer and reinstate that signature.

    Hap, your comment about picking and choosing raises another question: Of three petitions that have been challenged, why does the Secretary choose the medical marijuana petition for a recheck? Does this challenge establish standards under which we may expect the Secretary to throw out a check and conduct a recheck on future petitions?

  4. caheidelberger Post author | 2016-03-06 11:06

    Mike, hello!

    1. Thanks! I’m glad you find the post useful.

    2. Ditto. Secretary Krebs far outperforms her immediate predecessor (still, faint praise).

    3. Good app question. Note Mentele’s explanation in the article: “If there was even a question of whether a person was registered, the gatherer had that person input his or her name, birthday and address to check registration information.” Mentele didn’t have birthdates; she gave signers the chance to check their own registration status on the spot, before they signed. I didn’t have that app, but I helped some signers of my petitions go to the SOS website and check their status on their phones.

    4. Mentele hasn’t named the source of that list in public, but she has insisted that list is rock solid. The Secretary’s swift willingness to engage in a new sample suggests (doesn’t prove, but fuels speculation) that that may well be the case.

  5. larry kurtz 2016-03-06 11:41

    $20 says MJ* has his fingerprints all over Krebs’ actions.

    *Marty Jackley

  6. Happy Camper 2016-03-06 13:15

    I smell something funny as well. I’m assuming if the affidavit had gone forward the decision would have been outside of Krebs and the arguments to put this to a vote would have been strong. She didn’t follow the law (6%) and the language is clear about being liberal. Those dates are obvious even if omitted, so this way she retains the decision allowing to her follow the 5% with less of an argument when she fails it again and wears down the resources of those wanting it put to a vote. I don’t trust what I see. Nobody likes a nitpicker, especially when it’s about circumventing the law cause the power structure wants it that way over public rights.

  7. larry kurtz 2016-03-06 14:49

    Asset forfeiture is the lifeblood of the law enforcement industry. End that and bleed the beast of its venom.

  8. larry kurtz 2016-03-06 14:52

    Imagine an initiative that would freeze funding for the law enforcement industry forcing it to shed fat in its ranks.

  9. Lorri May 2016-03-06 14:53

    No, CAH, you’re not chopped bullhead, but you are a Democrat, and that makes a lot (or a little in this case) of difference in this state.

  10. Lynn 2016-03-06 17:22

    “Just Say No to Drugs!” Is such a fitting quote from former first lady Nancy Reagan as we remember her life and in regards to this softened recreational marijuana ballot initiative.

  11. jerry 2016-03-06 17:48

    Nancy had a change of heart on many things like stem cell research, so it does not surprise me that she changed her mind on the use of marijuana for medicinal purposes as well. Sometimes when issues hit close to your heart, you can have a change of heart. Her husband suffered from the old timers disease and she clearly knew that with stem cell research, help would come for those who suffered as he did.

  12. Lynn 2016-03-06 17:57

    After seeing the open 24/7 medical pot shops, $25.00 scripts with bring a friend and get a coupon and it”s the running joke in California. I highly doubt she had a change of heart. Nice try though.

    Addicts will do and say anything to justify their addiction.

  13. mike from iowa 2016-03-06 18:09

    Darth Cheney had a change of hearts,for all the good it will do him when Lucifer comes calling.

  14. jerry 2016-03-06 18:16

    Walgreen’s is also open 24/7 and they honor medical prescriptions as well as that is what medicinal marijuana is. Pain is something that you have no control over and that is why these pharmacies are open all the time. Pain is not a 9 to 5 job and it can happen at any time. She did have a change of heart regarding many of the things she was against. Sorry to have ruined your image of her. You can now go back to your regularly scheduled imaginary hateathon. Please proceed.

  15. Bob Newland 2016-03-06 18:25

    Lynn, I am happy to mention to you that both Ronnie and Nancy were doddering old fools, reminiscent of the blacklist era. As are you.

  16. Bob Newland 2016-03-06 18:29

    mike, it’s not a high bar, the “best political reporter in SoDak.” But you are right in implying that it is Cory.

  17. larry kurtz 2016-03-06 18:34

    Lynn is a dinosaur. Let it adapt or go extinct.

  18. bearcreekbat 2016-03-06 18:58

    Lynn, how much jail or prison time is right for someone who is trying to deal with pain by ingesting the forbidden herb?

  19. caheidelberger Post author | 2016-03-06 20:10

    Hap, I should note that the 6% argument and the liberal construal are two separate issues. The liberal construal statute (SDCL 2-1-11) applies to certification of a petition, saying that parties aggrieved by a petition rejection can ask the court to restore a measure to the ballot if the only thing keeping it off are technicalities rather than a genuine insufficiency of registered voter-signers. The 5% sample requirement (SDCL 2-1-16) tells the Secretary how she conducts the petition certification from the start. The Secretary could have bent over backwards to liberally construe the validity of signatures and still have violated the 5% sample rule by looking at more signatures than statute authorizes.

    Imagine it had gone the other way: imagine SOS Krebs had certified the medical cannabis petition and placed it on the ballot as Initiated Measure 24. Opponents like Lynn could have gone to Pierre, looked at the Secretary’s check sheet, counted 988 checked signatures, and filed a challenge saying, “Hey! You checked 6%, not 5%! Your certification is illegal! Count again!” Liberal construal flows one way, to the advantage of petition sponsors. The 5% requirement, if violated by the Secretary, flows both ways, allowing sponsors and opponents to challenge an undesirable certification decision.

  20. caheidelberger Post author | 2016-03-06 20:12

    (By the way, this post isn’t about the merits of medical cannabis and not even close to recreational pot. This post is about the really wonky inner workings of petition law, which gives me a better high than any herb or chemical. :-P )

  21. Happy Camper 2016-03-07 06:48

    On one hand Krebs says the “thought process” to do 6% rather than 5% was to be more fair, yet even though the law says “petitions herein provided for shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality” Krebs can’t use her thought processes to make a determination that something was a “mere technicality.” She said that would have to be decided by the courts. Give me a break.

    We should know what communications went on between her office and Jackley or anyone else. Somethin stinks. They want to sideline the people’s process.

  22. Lynn 2016-03-07 06:56

    Their office did a great job and saved the opposition resources and time of going to Pierre to challenge this.

    Historically and for obvious reasons any marijuana related ballot initiatives have had very high error rates compared to other initiatives.

  23. Happy Camper 2016-03-07 07:15

    Wrong Lynn. It’s another state embarrassment.

  24. larry kurtz 2016-03-07 07:19

    Historically and for obvious reasons any anti civil rights related ballot initiatives have had very high error rates compared to other initiatives.

  25. larry kurtz 2016-03-07 07:24

    Lynn makes a good point: South Dakota is clearly a police state where those seeking to feel better need to live elsewhere.

  26. Lynn 2016-03-07 07:30

    SDAP couldn’t even get enough signatures for their own Decrim petition drive despite all the supposed money spent on billboards in Sioux Falls and elsewhere. They complained repeatedly on their face book page that everyone just wanted to stay at home on their couch and get high while playing video games and no one wanted to help despite saying they supported their efforts. Lots of infighting during their drive.

    By the way did they ever get their act together and send in their report to the secretary of state’s office? They had already accumulated quite a hefty fine for being late but hey whats the big deal right? LOL

  27. larry kurtz 2016-03-07 07:37

    Lynn is exactly right: South Dakota is no longer a safe place to live. Flee now before the barricades go up.

  28. caheidelberger Post author | 2016-03-07 07:40

    Hap, I agree that if we have a statute allowing the court to reverse signature rejections on technicalities, we shouldn’t have the technicalities in the first place. If we have a rule, the rule should withstand judicial review. If the courts won’t enforce a rule, the Secretary of State shouldn’t have to follow it. The current situation just creates a barrier by which sponsors have to spend money on lawyers to get their measures on the ballot if their signature count is tight and their petition is sloppy.

    I’m not convinced this recheck is an effort to sideline the process. If the SOS and/or AG want to sideline the petition, it would be easier to say, “Recheck schmecheck; we’re sticking by our review. You don’t have enough signatures; see you in court.”

  29. Happy Camper 2016-03-07 07:42

    The post is about the process which everyone should care about regardless of how they feel about the law. Sadly Lynn you’ve proven ad nauseam you are irrational on the topic. It looks like the state wants to dictate by putting the ends before the means. People willing to do that are the ones to fear. Win the battle lose the war.

  30. Happy Camper 2016-03-07 07:50

    No Cory. If the law says be liberal Krebs should be liberal. She’s not following the law. They probably went to 6% trying to find a big problem, so when the court case was filed they knew they would lose, so better for them to do it again and find something the court won’t reject. Occasionally you are not suspicious enough probably because you don’t support the law and you were a nitpicker on Bosworth so you’re stuck in Krebs corner.

  31. Lynn 2016-03-07 07:51


    Given the history of very high error rates could this have been a factor?

  32. larry kurtz 2016-03-07 07:53

    South Dakota’s legislature is a Reichstag that’s why there could be sixteen initiatives and referenda on the 2016 ballot.

    If the legislature had the balls to divert its attention from ending women’s civil rights, building more prisons and trying to look at naked juveniles it would have more time to head off ballot clutter.

    By throwing out video lootery and adopting my cannabis template the state could make at least two ballot measures meaningless.

  33. Happy Camper 2016-03-07 08:16

    They hate ballot initiatives cause they want you to do as you’re told. How dare you challenge them. Why are they so afraid of the will of people. Just remember how easy it is to let your biases rule. The smart ones can do a whole lot of mental gymnastics to prove otherwise, often to themselves, but I see a whole lot of bias at work.

  34. barry freed 2016-03-07 08:19

    You should seek professional help to determine the root cause of your extreme anger and hatred for marijuana and those who utilize it for its many curative properties.

    I believe Dick Cheney and Oliver North should be in a geriatric prison washing bed pans, but I don’t hate them. In a way, I feel sorry for them as they have to be Cheney and North.

    Nancy was a victim of her ignorance, believing the Hearst lies and the people who profit from prohibition. “Just say whoa” is the realistic way of addressing any mood alteration, be it food, jogging, or whatever.

    The question is why you didn’t use your pulpit to encourage and organize the examination of all the IM’s, regardless of their approval or rejection. If the powers that be manipulate the system on one, the weaken the system for all.

  35. caheidelberger Post author | 2016-03-07 10:54

    (South Dakotans Against Prohibition: still no ballot question committee campaign finance year-end report.)

    Barry, I do encourage scrutiny of every ballot measure and candidate’s petition. Every issue and candidate will naturally arouse interest from various parties who may want to scrutinize specific petitions. I encourage any interested citizen to participate in the process. I advocate for easier access to those petitions (free online publication of all petitions, electronic petition options for easier collection and review, reduced cost for voter registration records) for all citizens. I even was willing to embrace the original 2015 SB 69, if SOS Krebs and the Legislature would have amended it to ensure better official scrutiny of petitions rather than allowing it to become an anti-voter, anti-Independent, incumbent protection plan.

    This petition should arouse unique interest because Mentele says has evidence that her unusually high error rate may not have been a product of dope-smoking circulators but of someone in the SOS office invalidating real registered voters. I would encourage any interested party with $2,500 for the voter registration file to go to Pierre, review the secretary’s check sheets and the petitions, and see (1) if the Secretary’s team really did make the errors Mentele alleges and (2) if similar SOS errors are found on other petitions. If such errors are frequent, they won’t change the ballot situation, since Team Krebs certified every other petition, but they would suggest some grave flaw in the quality of the voter registration rolls or in Team Krebs’s quality control practices.

  36. happy camper 2016-03-07 13:51

    If Mentele is certain she should get some people to blow the top right off this thing. They don’t want open government. You’ll never get me to trust a power structure. Think Katherine Harris. Think of all your school and work years. Egos and power plays fairness right out the window. Mentele might be backing off hoping for a positive outcome now that it’s under scrutiny, but for all we know Lynn’s sister works there the real pot-hating nitpicker of the family. Or what if Lynn worked there. Who’s auditing the auditors.

  37. Lynn 2016-03-07 14:06


    I don’t know anyone in that office nor do I have any relatives working there. Lets not carried away with conspiracy theories. You have seemed better than that. I am curious to see how this plays out though.

    Cory knows I do not work in any office that could have an effect on this. Right Cory?

  38. caheidelberger Post author | 2016-03-07 14:14

    Hap, now you’ve lost me. Liberal construal and the 5% sample are very different issues. What are you trying to say?

  39. Lynn 2016-03-07 14:31

    Cory to help put Happy’s mind at ease and not feed conspiracy theories do I work for the SoS or any related office?

    Besides even if I did work there I would always be professional and not let my personal bias affect my work which would jeopardize the integrity of the office and I would follow the law.

  40. mike from iowa 2016-03-07 14:36

    I’m O J Simpson. I didn’t murder my ex-wife and her friend,but, if I did, O would have done it with a 5 inch knife and slashed her throat and her dog wouldn’t have barked because he knew me.just like it happened.-Lynn

  41. happy camper 2016-03-07 16:01

    This Cory: Mentele has evidence that her unusually high error rate may not have been a product of dope-smoking circulators but of someone in the SOS office invalidating real registered voters. The Rapid City article said she talked to someone in the office who couldn’t understand why they were invalidated. That’s a big deal. That should be investigated regardless of how this next count goes.

    Lynn I’m not saying you actually work there, but using you as the obvious example of person who feels so strongly they wouldn’t be able to get past their bias. I said the same about Cory who is a teetotaler and seemed to be giving Krebs a pass. There are people doing this count and Krebs said they don’t have the manpower to double check everything.

    Bush didn’t win the popular vote Katherine Harris go team.

  42. caheidelberger Post author | 2016-03-07 17:58

    Given that Lynn is authorizing me to reveal potentially identifying information, I will say that Lynn does not work in the Secretary of State’s office.

  43. caheidelberger Post author | 2016-03-07 18:01

    Hap, Mentele may yet share more evidence with us. We should watch closely to see if the 5% recheck produces any different result from the illegal 6% check. When we get that result, we should be able to do some quick statistical analysis to tell us what the chances are that any difference was the result of randomness.

  44. leslie 2016-03-07 18:53

    “Addicts will do and say anything to justify their addiction.”

    just say no.

    two platitudes that remind me of climate change denial.

    we stigmatize mentally ill and addict/alcoholics rather than treat them.

  45. leslie 2016-03-07 19:35

    Penn Cty Pub Defenders office has about 17 or 18 lawyers. They say they are overwhelmed by addiction requiring criminal defense.

    The states attorneys office is probably fairly quite a bit bigger.

    the largest firm in SD in SF has 30 lawyers. The largest firms in RC are smaller than the state/county criminal lawyers for the prosecution and defense.

    do you think any of them really understand alcoholism and addiction? Do you think their strategies reflect rehabilitation in any effective way? do you know how many thousands of families are destroyed by alcoholism and addiction? do you know how much the state and feds and counties spend on law enforcement and criminal justice and related civil/domestic matters that directly relate to alcoholism, addiction and mental illness? Do you think the judges answer these questions any more effectively?

    we treat alcoholism, addiction and mental illness with street cops with guns. not really fair to the cops and perps is it when you have so many big brains mishandling the major social crisis in the nation that goes on and on as a meat grinder?

    the only people who think alcoholism/addiction/mental illness are sexy are people too young to know better. DSM-5, wringing it hands, calls this trifecta alcohol use/substance addictive and mental disorders.

    Obama Care is turning its sights on this huge drain of lost potential.

    SD Attorneys General think their 24/7 invention is the slickest wicket and they get national republican glee bubbling over about how successfully they destroy lives.

    RAND Corporation is an American nonprofit global policy think tank[1] originally formed by Douglas Aircraft Company to offer research and analysis to the United States Armed Forces. It is financed by the U.S. government and private endowment,[5] corporations[8] including the health care industry, universities[8] and private individuals.[8] wiki

    Rand Substance abuse focuses on drugs but not so much alcohol, because we all know it is a rite of passage, and that the artic isn’t thawing.

    Rand Corporation loves larry long and probably our fearless feckless marty jackley.

    this horrific social catastrophe isn’t going anywhere so these guys don’t do anything.

  46. barry freed 2016-03-08 08:39

    For only $2500 each, I can redress my Government on every important issue? What a deal! If only there were an aspiring politician in Aberdeen with a blog to facilitate and organize the dissemination of such information on-line and for free…

    Cory said: “product of dope smoking circulators”

    What a pompous ass! You are actually proud of your willful, pathetic ignorance; parading about, your bigotry and hate.

    I challenge you to a play-off using the next release of Trivial Pursuit. One never seen before. I haven’t smoked in years, but I will find some even if I have to drive to Montana. Then I will smoke it before we play. If I beat you, you have to parade around the Statehouse wearing a giant, floppy, hat made of a marijuana leaf saying: “I got schooled by a doper”.

  47. leslie 2016-03-08 11:41

    barry, i’m always so comforted seeing young children raised by dope smoking parents. primary concern in life: dealers cell fon #. raising kids is dicey sober. maybe parants are better high. haven’t seen the research. maybe, but perhaps contray to cw. then, give em’ their god given right to carry an ar15. do you have any idea what your future is brewing. drugs, guns and sex. anger. enlightenment?

    have you been out on the streets pushing political petitions only to confront nefarious corporate petition circulators?? what size are your mocs?

  48. happy camper 2016-03-08 16:32

    “When we get that result, we should be able to do some quick statistical analysis to tell us what the chances are that any difference was the result of randomness.”

    Not if they fudge the numbers similarly both times. I’m just starting to watch the Experimenter on Netflix and am reminded how easily people conform to what’s expected by people of authority. They roll over like puppies. My faith in Krebs is gone.

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