Has the Bosworth precedent kept a municipal referendum off the ballot in Watertown?
Glacial Lakes Energy in Watertown wants to build a four-track rail loop that will allow them to load more train cars without backing trains up and blocking traffic on Highway 212 to the north.
According to data presented at the March 7 meeting of the Watertown City Council, since the construction of the South Bypass (from Highway 212 at Sharp Auto and the Prairie Stop southeast to Broadway, Glacial Lakes, and Highway 81) in 2012, daily traffic along that 2,500-foot stretch of South Broadway has decreased 44%, from 2,033 vehicles to 1,139.
The City Council thought vacating South Broadway was a great idea and approved it March 7. Jon Dagel, the owner of the Little River City c-store at South Broadway and 212, former city alderman Mike Davis, and others* did not. Obviously not wanting to lose business from Glacial Lakes workers taking Broadway to and from work, Dagel, Davis, and friends took out a petition and collected 1,004 signatures to put the road vacation to a vote. City Finance Officer Rochelle Ebbers validated the necessary 703 signatures last week, and Watertown’s off to the polls—
—Not so fast, said Glacial Lakes Energy. CEO Jim Seurer came to Monday’s council meeting and demanded that the city reject the petition based on irregularities uncovered in its circulation. Specifically, Seurer alleged that circulators did not witness the signatures on their sheets. Mayor Steve Thorson said law enforcement officers had confirmed that allegation, and the council declared the petition invalid, thus forestalling any referendum vote.
The Watertown City Council has taken a very different approach to this petition challenge from Secretary of State Jason Gant’s approach to my challenge of Annette Bosworth’s nominating petition in 2014. I made the same argument that Seurer did: circulators did not witness signatures, therefore those signatures and all signatures gathered by those circulators were invalid. Secretary Gant rejected my challenge, saying his office had no authority to go beyond a facial review of the petition and that a challenge based on the evidence I presented had to be resolved in court.
If Secretary Gant had taken the initiative shown by the Watertown City Council, Annette Bosworth would never have made the 2014 primary ballot. If Secretary Krebs adopts the Watertown stance with respect to my pending challenge of Lisa Furlong’s petition, the fake 18% rate cap won’t make the ballot.
The Watertown City Council is right: oaths matter. We have a duty to protect the integrity of petitions and elections. As much as I love initiative and referendum, if people don’t do petitions right, their measures should not make the ballot.
However, there is a statutory argument that the city, just like Secretary Gant, really does lack the authority to reject the South Broadway petition. Rules 05:02:08:00 and 05:02:08:00.01 lays out the requirements for accepting petitions and counting signatures. None of them specify that the office accepting petitions should investigate circulators for violating their circulators oath. That was Gant’s argument in 2014. More importantly, SDCL 9-20-4 appears to say that once the city finance officer has validated a referendum petition, “The governing body shall submit the petition to a vote of the voters….” Shall submit.
The Watertown City Council’s action this week runs counter to Secretary Gant’s (in)action on the Bosworth petition violations in 2014. The Bosworth trial (and her hubby Chad Haber’s plea bargain) established that muffing the circulator’s oath can result in criminal charges. The press surrounding Bosworth’s sensational trial may have motivated Seurer and the council to take the position they have, but the Bosworth trial did not provide clear legal precedent for rejecting a petition based on felonious circulator activity. If Dagel, Davis, and their fellow circulators go to court, Watertown’s rejection of this road referendum could provide such a precedent.
Correction 12:08 CDT: A Watertown neighbor corrects me: Jon Dagel owns Little River City; Mike Davis is a former city alderman. I originally misread KXLG’s report and listed Davis as the c-store owner.