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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.


  1. Bob Newland 2016-05-31 10:41

    I doubt that a person could TRY to get 16000 signatures with 60% of them invalid and succeed. There is something wrong with the sampling method.

  2. caheidelberger Post author | 2016-05-31 12:38

    Bob, Mentele tells me they have more than enough signatures from registered voters but that the Secretary is throwing out sheets where the notary put an incorrect “My Commission Expires” date.

  3. caheidelberger Post author | 2016-05-31 12:38

    I remain puzzled by how a new sample could produce such a radically different error rate.

  4. Melissa 2016-05-31 15:12

    I am working on this issue today. Still have not received the spread sheet that was promised on Friday & my phone calls have not been returned.

    I am curious to what the answers will be.

  5. Bob Newland 2016-05-31 19:22

    I doubt that a judge will allow the SOS to discard sheets because the notary failed to write his/her commission expiration date. I have talked to Mentele and she says she’s confident that the signatures are good, at least 13870 of them are.

    This is starting to appear like the SOS is either incompetent or simply doesn’t want this issue on the ballot.

  6. caheidelberger Post author | 2016-05-31 22:31

    Mentele has posed this question to me: an incorrect notary expiration date is not a facial error; the Secretary has to look that up. The statutes and rules that the Secretary as assiduously cited as not authorizing her to look beyond facial completeness and voter registration say nothing about looking up notary expiration dates. Can the Secretary seek that additional information to inform her review of a petition but not seek out the information I’ve pointed to in notary misdeeds?

  7. barry freed 2016-06-01 07:33

    Please post an address where concerned people can send a donation.

    Maybe some here don’t care about freedom or human rights when it comes to Medical Marijuana, but the tactics used by the SOS to thwart The People’s will on this issue shall be applied to other IM’s you do care about.

    Once again, we need IM’s designed to protect IM’s

  8. Bob Newland 2016-06-01 09:17

    The SOS can do anything she wants to do until a court makes her stop. There is no penalty for attempting to thwart a medical cannabis vote.

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