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Newland Posts Ballot, Breaks Unconstitutional South Dakota Law

Bob Newland makes minor trouble again. On Facebook, the longtime Libertarian posts his early ballot, showing that he voted for the Johnson-Weld Presidential ticket, then voted Democratic for everything else. (Thanks, Bob!) He then voted yes on four ballot measures: Amendment T, Amendment V, Initiated Measure 21, and Referred Law 19.

District 9 then chimes in to razz Newland for posting the picture of his ballot:

Clark Newland FB 20161012 Hickey Newland FB 20161012

Bret Clanton jumps into the comment section to provide the statute Newland violates:

No person may show a ballot after it is marked to any person in such a way as to reveal the contents of the ballot, or the name of any candidate for whom the person has marked a vote. Nor may any person solicit the voter to show the voter’s ballot. Immediately after marking the ballot the voter shall fold and refold the ballot, if necessary, leaving the official stamp exposed [SDCL 12-18-27].

If Newland does get an invitation from Attorney General Marty Jackley to the courthouse, Newland should follow through with his promise to take it to the Supreme Court. He will likely win. A federal court overturned New Hampshire’s ban on “ballot selfies” in 2015; just a couple weeks ago, the First U.S. Circuit Court of Appeals upheld that ruling, saying that the state has failed to demonstrate a single instance of “vote buying or intimidation related to a voter’s publishing a photograph of a marked ballot” in the age of social media. Absent some compelling public concern, the state cannot abridge our First Amendment right to display our marked ballots.

The First Circuit’s decision only covers New Hampshire, Massachusetts, and Maine. But if A.G. Jackley decides to throw the South Dakota book at Newland, the New Hampshire ruling suggests the court will intercept and remove a page from that book. Of course, the South Dakota statute specifies no penalty for ballot selfies, so A.G. Jackley may see no reason to bother.


  1. JLB 2016-10-13 08:23

    Oddly, I am pretty sure violation of SDCL 12-18-27 is a not criminal violation. There is no criminal penalty attached to the statue. The state could get an injunction requiring you to remove it, but I think that is about it.

  2. Dave 2016-10-13 08:49

    why are they all wearing funny hats?

  3. caheidelberger Post author | 2016-10-13 08:49

    JLB, I was wondering if maybe there was some overarching statute prescribing penalties for offenses against the electoral franchise, but I haven’t seen any. Is there no default penalty for violations of state laws when a penalty is not otherwise specified? How many such penalty-less offenses are on the books? Maybe that should be one of my first clean-up bills: compile a list of penalty-less laws (written just for show?) and either add penalties or strike the statutes.

  4. grudznick 2016-10-13 09:19

    I think those are all pretty swell hats. If I was tweeting I would have on my hat too.

  5. Bob Newland 2016-10-13 10:13

    I am not sure about Michael’s and Steve’s but mine is my asshat.

    Incidentally, Bret Clanton pointed out on Facebook, with a reference to this blog entry, that “you are going to jail for sure now.”

    I have packed my s**t. (That’s the punchline to a jailhouse joke.)

  6. Bob Newland 2016-10-13 10:16

    As for the democratic votes on my ballot….

    If there were a REAL Republican running for the offices I can vote for in District 30, I would consider them. Instead, the GOP candidates I can vote for all seem to go to NASCAR conventions for their policies.

  7. Troy Jones 2016-10-13 10:42

    Whether or not it a problem or not in today’s world, CH you did touch on the rationale for the law-prevention of voter intimidation. The law has roots back to reconstruction where the landowner (former slave-owner) took en masse his new share croppers to vote and expected them to all show him they punched the right candidates. It got new momentum during the days of the temperance movement (and after suffrage was granted to women) where husbands insisted on seeing their wife’s ballot to make sure they didn’t support temperance candidates or laws.

    At the end of the day, the concept of a secret ballot and protections against coercion have merit to at least be weighed against those who want to document to the world how they voted. Does Bob doubt people would believe how he says he voted?

  8. Baby Moon 2016-10-13 10:55

    Troy, if what you are saying is correct (and it sounds perfectly reasonable as a rationale for the statute) why doesn’t the statue reference that in some way, “It shall be unlawful for any person to coerce, threaten, intimidate (blah blah) any other person into showing them their ballot”, “Voting is done by secret ballot to protect the voter from undue coercion or intimidation” or some such thing. And we don’t have “legislative history”, necessarily, so I’m wondering about your assertion. Any “documentable” history there?

  9. Bob Newland 2016-10-13 12:08

    What I doubt, Troy, is that people who claim Trump has met Jesus and introduced Jesus to his girlfriends and has been granted immunity from the hounds of hell have the mental capacity to make important decisions about anything. THOSE are the people who should not be allowed to vote.

    By the way, Pat Powers should not be allowed to vote.

  10. Troy Jones 2016-10-13 13:27


    In my life, I’ve read alot of history books, especially when my kids were home and we had no TV hours where they did their homework. Especially, Revolutionary War-War of 1812 and Civil War. I just have it in my head. But, you ask a good question for which I have no recollection if I read the rationale why they put the burden on the voter and not person they were showing it to. My guess is it was easier to enforce so the guy said I can’t help it they show me their ballot. But maybe it is something else.

    I did a quick google search and all I found was the laws came about in the 1970’s (contrary to what I remember) as protection against voter intimidation and vote buying schemes. One article mentioned something about people showing their ballot to a poll watcher and poll challenger. Mark the right ballot and it won’t be protested. Don’t show and your vote got protested.

  11. JLB 2016-10-13 13:33

    There is an overriding statute, SDCL 22-6-2, but it excludes Title 12.

    ” Except in Titles 1 to 20, inclusive, 22, 25 to 28, inclusive, 32 to 36, inclusive, 40 to 42, inclusive, 47 to 54, inclusive, and 58 to 62, inclusive, if the performance of an act is prohibited by a statute, and no penalty for the violation of such statute is imposed by a statute, the doing of such act is a Class 2 misdemeanor.”

  12. Troy Jones 2016-10-13 13:43

    Another article stressed the illegality of buying votes. I infer the other side of the transaction is taking away the ability of the “buyer” to have confirmation the “seller” actually performed as promised. Looks like it is more about vote buying than voter intimidation today.

  13. grudznick 2016-10-13 13:58

    I am inclined to agree with my good friend Bob. Some people might be too stupid to vote. For instance, people dumb enough to go to pay-day lenders.

  14. Don Coyote 2016-10-13 14:33

    @Bob Newland: “If there were a REAL Republican running for the offices I can vote for in District 30, I would consider them”

    And yet you vote for the biggest Libertarian fraud since Bob Barr ran in 2008. I once believed that the Libertarian Party had the potential to become a viable third party. Instead they’ve become the butt of bad jokes now led by a clueless buffoon who is totally ignorant on foreign policy, weak kneed on individual rights and a believer in deficit spending by the government. It’d be easier to show respect for Libertarians if they just reverted to their passing around their tattered Xeroxed newsletters. This has to be the worst slate of candidates to have ever run for President. A pox on all of them.

  15. Bob Newland 2016-10-13 15:53

    Did I make another mistake, Don Coyote? How much more do I expect you folks to take?

    Of the choices I had for president, who should I have chosen, in order not to have voted for a “fraud?”

    Tell me, so I can get it right next time, and not let you down again.

  16. mike from iowa 2016-10-13 16:38

    Newland, since you are headed to federal prison for life, can I have your Playboy collection?

  17. Bob Newland 2016-10-13 17:19

    I think I’d better take the Playboys to prison with me.

    Are you interested in the complete works of René Descartes?

    “I stink, therefore I am.”

  18. mike from iowa 2016-10-13 17:35

    Only if he shows lots of nekkid womens.

  19. Bob Newland 2016-10-13 17:43

    Descartes shows everyone naked. I mean, NAKED!

  20. Jon H 2016-10-14 00:18

    I don’t see anything wrong with showing pride in voting. I remember playing poker with Bob in Deadwood when it was fun and they actually had fair games!

  21. caheidelberger Post author | 2016-10-14 06:36

    JLB, that’s a very useful statute. Thanks for that research!

  22. caheidelberger Post author | 2016-10-14 06:44

    The chapter on offenses against the elective franchise, Chapter 12-26, does lay out penalties for messing with elections. Interestingly, lawmakers don’t seem too concerned about vote=buying: bribery of a voter is a mere Class 2 misdemeanor.

    I would return to the idea that displaying our votes could make for a nice check against FSB(KGB) interference in the election. The more supporters who publicly document their ballot, the smaller the margin Putin’s hackers have to change the numbers.

  23. barry freed 2016-10-14 08:14

    Just how have, and how are, the Russians going to successfully hack our voting machines that are not online? Do they have agents embedded in our County Courthouses?

    At least you finally acknowledge there was funny business in the Primaries ( that were also off-line and could only be hacked from the inside ) whose results fail every standard we have for judging election exit polls in other Countries. In some cases they were six times the number of what we consider “rigged”. Now you can begin to consider who profited from this insider hack, and thus, who will be hacking the Election.

    The Russians may, however, have some information about the DNC computer programmer and whistle blower, Seth Rich, who was robbed and murdered, though nothing was taken from him in the robbery.

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