Krebs Resamples Medical Cannabis Petition, Finds Higher Rate, Opens New 30-Day Challenge Window?

Secretary of State Shantel Krebs announced late Friday that she has again rejected the petition filed by Melissa Mentele and New Approach South Dakota to place Mentele’s medical cannabis initiative on our November ballot. But this rejection raises an interesting legal question: is Secretary Krebs’s rejection subject to another 30-day challenge period?

Secretary Krebs originally rejected the medical cannabis petition on February 3 (not February 23 as claimed in the official SOS press release). On March 3, Mentele formally challenged that rejection, citing major errors committed by the Secretary of State’s office in sampling signatures and rejecting valid signatures from registered voters. Secretary Krebs responded with the unusual promise to take a new random sample. Such a “recount” may not be authorized anywhere in statute or administrative rule, unless we accept the argument that oversampling of the medical marijuana petition (the Secretary appears to have reviewed 6% of the submitted signature lines, not 5% as authorized by statute) renders the Secretary’s first count invalid and thus obliges the Secretary to conduct a new, legal signature check.

The Secretary’s second count went even worse for the medical cannabis petitioners than the first count:

Once the signed petitions were delivered to the Secretary of State’s office, a 5% random sampling was conducted in accordance with 2-1-16. It was determined that 63.2% of signatures were invalid [South Dakota Secretary of State’s office, press release, as printed at Dakota War College, 2016.05.27].

The original count in February found a 45.5% error rate. That’s a swing of 147 signatures in an 828-signature sample. While both error rates result in rejection of the medical cannabis petition (which could have withstood only a 16.1% error rate), the wide variance between the two samples should encourage petitioners to challenge the Secretary’s sampling methods…

…which brings us to our legal question of the day: Can interested parties challenge the Secretary’s recount directly to the Secretary, or must they take any further challenge to circuit court?

Recall that SDCL 12-1-13 allows us to challenge statewide initiative and referendum petitions “within thirty days after the petition is filed with the person in charge of the election.” “Filed” has been interpreted to mean certified or rejected by the Secretary of State. By resampling and rechecking the medical cannabis petition, Secretary Krebs appears to have rendered the first petition sample and check moot. The Secretary’s press release does not indicate that she is responding to Mentele’s March 3 challenge, as required by law; absent such a response, we may conclude that the challenge is moot because the count it challenged is moot. Therefore, the only extant, legally binding evaluation of the medical cannabis petition is that issued by Secretary Krebs on Friday. The filing of the petition with that new evaluation appears to open a new thirty-day window for any interested person to challenge that petition filing.

I could be wrong—I’m not aware of precedent for resampling an initiative petition, so South Dakota may never have faced this question. But it’s a question I’d love to have answered when everyone gets back from the lake and returns to the office Tuesday morning.