Rocky de la Fuente Sues for Spot on South Dakota Presidential Ballot

Florida businessman Roque “Rocky” de la Fuente is suing for a spot on South Dakota’s Presidential ballot. According to a complaint filed in federal court Wednesday, de la Fuente says Secretary of State Shantel Krebs and her deputy, Kea Wanre, improperly rejected a nominating petition with 4,144 signatures, 49% more than the statutorily required 2,774 signatures.

Hold on. Over 4,000 South Dakotans signed a petition for Rocky de la Fuente? Really? That had to be a mighty stealthy petition drive. Neighbors, if you signed for de la Fuente, let me know.

Under a new statute passed in 2015 (Senate Bill 68!), Secretary Krebs checked the petition by randomly sampling 5% of the signatures. 127 of the 208 sampled signatures were valid. That 61.1% validity rate multiplied by signatures submitted yields only 2,530 calculated valid signatures, 244 too few to make the ballot.

To get back on the ballot, de la Fuente must win back at least 11 of the signatures that Secretary Krebs disqualified in the sample. The complaint contends 18 disqualified  signatures should count:

• 5 signatures rejected for expired notary commission;
• 3 for otherwise incomplete affidavit;
• 3 for photocopied sheets instead of the originals signed by the voters; and
• 7 for wrong county of registration supplied by voter.

On the expired notary commission, de la Fuente contends that “Each notarization of a nominating petition page typically costs, at minimum, $5.00 per notarization.” The complaint argues that requiring circulators to obtain a notary seal on each sheet of the petition (per SDCL 12-6-8) thus imposes an unconstitutional filing fee.

Again, really? In fifteen years of circulating petitions in South Dakota, I do not recall ever paying a fee to obtain a notary seal. I’ve gotten notary seals at local banks, including one where I have no accounts, at the county courthouse, and from fellow activists. SDCL 18-1-9 allows notaries public to charge for notarizing any document other than an absentee ballot request, but the fee is capped at $10.

Even if de la Fuente’s circulators couldn’t find a charitable notary (and in a separate memorandum supporting the complaint, de la Fuente argues that it’s hard to get freebies when a circulator walks in with a big stack of petition sheets), they did not pay a filing fee. Paying a notary is just the cost of activism, just like chunking dimes in the copy machine to run off petition sheets, buying the stamps or gasoline necessary to transport those signed, notarized sheets to Pierre, or paying a professional circulator to collect 4,144 signatures without any apparent publicity or grassroots volunteer recruiting. (Of course, if the court does rule that the notary requirement does constitute an indirect filing fee to which the state must provide a non-monetary alternative, I will be happy to sponsor legislation next year establishing an online electronic petitioning system!)

The complaint does not make clear the details of the “incomplete” affidavits that disqualified three more signatures, but de la Fuente ties those put-backs with the five notary commission issues and argues that his circulators should have been allowed to correct those errors after the Secretary of State identified them on the filed petition. I’m uneasy with that argument. If the petitioner wants to correct the error on the field sheet itself, I say no way: once the notary stamps that sheet, it’s done. Nothing can change. If the petitioner wants a chance to submit a new, corrected sheet to address possible errors and violations of rules that all petitioners know about from the outset, the petitioner needs to submit the petition well before the deadline, so that if the Secretary finds it lacking, the petitioner can try again before the deadline.

So there are eight signatures that we don’t put back.

On the photocopy issue, the complaint is unclear. The complaint says of the three photocopy-dq’ed signatures, “the petition page submitted was a copy of the original even though the page submitted was the petition page actually notarized in apparent violation of ‘Rule #17’ of the instructions for ‘Circulating a Nominating Petition’ published by defendants….” The complaint apparently cites this brochure from the Secretary of State, which lists 20 rules petition circulators must follow, including #17: “If photocopies are made of the originally signed petition sheet for circulation, the original petition sheet must be submitted with the photocopied sheets.”

Again, I’m not sure what the complaint is saying, but here’s what the law (SDCL 12-6-8) and administrative rule (ARSD 05:02:08:00) say:

1. Every petition page must have the original signature of each registered voter nominating the candidate.
2. Every petition page must have either an original or photocopied signature of the candidate.
3. When circulators file the entire petition—i.e., all of the signed and notarized petition pages in one big envelope or box—they must accompany that entire batch with the original declaration candidacy signed by the candidate under notary seal.

To summarize: every voter’s signature must appear in its original ink. The candidate’s signature must appear in its original ink on one sheet.

That photocopy rule exists to prevent dirty tricks. If we allow circulators to notarize and submit photocopied voter signatures, then I could save photocopies of old nominating and ballot question petitions, cut and paste them to future petitions, alter the dates, and get myself, my friends, and my future initiatives and referenda on the ballot far more easily than by standing on windy street corners and asking for new signatures. A primary challenger or an independent could grab petitions for a more popular opponent, collect signatures from her supporters, then photocopy those signatures onto his own petition. We can allow copies of the candidate’s declaration, as long as we have the original to compare. But we must have every voter’s original signature on every sheet to ensure that the voters signed what the circulators say they signed.

If de la Fuente is saying that Secretary Krebs threw out two sheets that bore the original signatures of voters but only a photocopy of the candidate’s signature, then he gets those two sheets and their three sampled signatures back. But if the Secretary threw out three photocopied voter signatures, then those three sampled signatures are bogus.

On the wrong listed counties, de la Fuente says the state has no reason to ask for county, since the centralized voter registration database allows the Secretary to look up every voter without county information. Requiring voters to write their county of registration (per SDCL 12-1-35 and numerous rules under ARSD Chapter 05:02:08) thus becomes a “memory test” that creates “an unconstitutionally restrictive impairment of core political speech.”

I’d contend that’s a rather trivial test, hardly more difficult than the requirement that voters remember whether they are registered in the first place or what today’s date is. But even trivial barriers to exercising fundamental rights must have some justification. The state can’t ask questions just for the heck of it; the state must show that Secretary Krebs needs that county information to check voter registration. If she can’t—if the name and address required are already enough to distinguish Tim Johnson from Brown County and Tim Johnson from Minnehaha County—then de la Fuente may have his best argument for putting signatures back.

But those county errors only give him seven. I don’t think he’s winning the three photocopy rejections, the three incompletes, or the five expired notaries.

“Yo vivo en el mundo real,” says de la Fuente, in this campaign ad for his concurrent U.S. Senate bid in Florida:

In the real world of South Dakota petition requirements, de la Fuente seems to have little chance of putting back the eleven signatures he needs to get on the ballot, as least on the arguments advanced so far. Plaintiffs arguments were due by 4 p.m. yesterday; defendants have until 4 p.m. Monday to respond. Judge Roberto A. Lange will hear evidence Tuesday, August 30, at 1 p.m. at the federal courthouse in Pierre. Plaintiffs, I’d recommend you spend the weekend reviewing your full petition and preparing a back-up list that will show the judge that, Secretary Krebs’s sample be darned, 2,744 registered South Dakota voters really did sign Rocky’s petition.

p.s.: De la Fuente says in an August 24 declaration to the court that he is an independent candidate, Reform Party nominee, and American Delta Party nominee for President. He says he has qualified for the ballot in “more than 22 States,” expects to qualify in twelve more states by next week, and expects to be on 44 state ballots total.