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Medical Cannabis Petition Fails on Rampant Notary Error; Further Challenge Must Go to Court

The “recount” and second rejection of the medical cannabis petition raised a few legal questions about the status of that petition and the process that led Secretary Krebs to uphold its rejection. Secretary of State Shantel Krebs and Deputy Secretary of State Kea Warne took time yesterday afternoon to answer those questions for Dakota Free Press.

First, Deputy Secretary Warne confirmed that a “recount” took place. I keep putting that term in quotes, since there is no statutory term for this “rare” (that’s Warne’s word; I can’t think of a precedent) action. The Secretary of State’s office affirmed the claim in petition sponsor Melissa Mentele’s March 3 challenge that the Secretary had sampled 6% of the signatures in her petition rather than the 5% required by law and administrative rule. The Secretary visited with Attorney General Marty Jackley, who advised the Secretary to conduct another random sample, which was one of three alternative remedies proposed in Mentele’s challenge.

Warne said the oversample of the first review resulted from incorrectly counting signatures drawn twice in the random sample. I’m not sure how one gets duplicates in a random sort of a spreadsheet: you make a copy of your data, enter the RAND() function in an adjacent cell, Fill Down with that RAND() to the bottom of your data, Select All, Sort by your RAND() column, and then grab the entries at the top of the Sorted heap for your 5% sample. Easy-peasy—no duplicates!

Duplicates persisted in the second sample, but this time the Secretary of State’s team counted more carefully, struck thirty repeaters, and pulled up thirty more entries to flesh out the necessary 5% sample, or in this case, 827 signatures out of 16,543 submitted. (Interesting: the Secretary rounded down. 5% of 16,543 is 827.15.)

This second sample does not reopen the window for Mentele or other interested parties to challenge the petition rejection in the Secretary of State’s office. I could argue that the oversample in the first count means the first count has no legal force and that the 30-day challenge window of SDCL 12-1-13 can only be triggered by the legally binding action of the recount just filed by the Secretary. However, the Secretary’s office asked the Attorney General about that very question, and the Attorney General said no! The first count happened. Mentele’s challenge asked for a recount. The Secretary responded to that challenge by conducting a recount. The SOS-challenge process has been exhausted; any further challenge has to go to circuit court.

The recount found 92 signatures out of 827 did not belong to registered voters. Had those been the only errors, the Secretary would have calculated Mentele’s petition to have 14,702 valid signatures, more than the 13,871 threshold and enough to qualify for the ballot. But the Secretary threw out an additional 359 signatures from the sample based on “Notary Issues,” most of which consisted of the notary writing her commission expiration date in an incomplete fashion. For example, one petition sheet shows a notary commission expiration date of “5/17”. On a purely facial review of the petition (the Secretary’s team did not look up notaries in their database), that inscription could mean “May 2017” or “May 17th” (or “Sol Jovis, 5 Leo” on Mars). Either way, it’s incomplete and indiscernible, and the notary’s failure to write a complete and discernible date nukes every signature on the sheet.

SDCL 2-1-11 says petitions “shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.” Overturning those 359 signatures on a notary not writing a full date seems to exemplify technicality defeating voter intention. However, if the medical cannabis petitioners want that liberal construal, they’ll have to get it from a judge, not from the Secretary of State.

Note also that even if the petitioners got a judge to restore all 359 of those notary issue rejections, that restoration would raise the total valid signatures in the sample from 299 to 658. That’s a 79.56% validity rate; Mentele and friends need an 83.85% validity rate to get on the ballot. They need to find another 36 signatures on top of the 359 rejected for notary issues to beat the recount and put their measure on the ballot.

Or they could just go through their entire petition one more time, count up all the registered voters, and say, “Look, judge: 13,871 registered voters, plus extra. Put us on the ballot.”

Court challenges to any of the Secretary of State’s ballot measure petition rulings must be resolved by August 16, the deadline for the Secretary to certify ballot measures to our county auditors.

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