Board of Elections Considers Making Petition Challenges Cheaper But Tougher

Also Offers to Help Minor Parties Keep Official Status

The South Dakota Board of Elections met yesterday to consider draft legislation that it may propose to the 2017 Legislature. The draft proposals include a number of important changes to the election process.

First, the Board of Elections recognizes an error in election law created by the 2016 Legislature that banned citizen challenges to primary candidate petitions. Alerted by this blog to that error last spring, Secretary of State Shantel Krebs followed through on her promise to bring that error to the Board’s attention. Item #5 in the draft proposals strikes the offending language and restores our right to challenge petitions first to election officials before resorting to circuit court.

The Board is proposing to make it mostly cheaper for petition challengers to obtain copies of submitted petitions. The Board isn’t going as far as my proposal to post all petitions online, but they are at least setting a fixed cost for electronic copies of each type of petition, regardless of number of pages. The Board suggests adding this language to SDCL 1-8-10, which sets fees for services performed by the Secretary of State’s office:

8. If the document is a petition and request is for an electronic file the following fees shall be:
   1. Nominating petition for a legislative candidate or special district candidate fifteen dollars;
   2. Nominating petition for a statewide candidate fifty dollars;
   3. Petitions for statewide ballot measure five hundred dollars;
   4. Petitions for new party formation five hundred dollars [Board of Elections, 2017 Proposed Statute Changes, 2016.10.13, p. 1].

Note that for legislative candidates and special district candidates, whose petitions may consist of just one, two, or three sheets, $15 may be more than the current cost of $2 per sheet. However, $50 for a statewide candidate’s petition will be much less than the $452 I paid to obtain Annette Bosworth’s nominating petition in 2014. $500 for a statewide nominating petition is notably steeper, but it is still a break from the thousands of dollars it would have cost to obtain copies of any of the initiative and referendum petitions submitted in 2015. New party petitions require only half as many signatures as an initiated law petition, so setting the cost of a new party petition at $500 is simply unfair. I would suggest amending the costs down: while it may take ten times as long to scan an initiative petition to PDF than it takes to run a nominating petition, once those PDFs are created, the cost of making additional copies is effectively zero. If we must charge for electrons, set the costs at $5 for Legislative candidates’ petitions, $20 for statewide candidates’ petitions, $50 for new parties’ petitions, and $100 for ballot measure petitions.

Once we get those cheaper petitions, though, the Board of Elections wants to make it harder for citizens to successfully challenge a petition without going to court. Items #4 and #5 would spell out items that the Secretary of State will not consider in petition challenges:

1. Signer does not live at address listed on the petition;
2. Circulator does not live at address listed on the petition;
3. Circulator is not a South Dakota resident;
4. Circulator did not witness the signers;
5. Signatures or petitions sheets not included in the five percent random sample;
6. Petition that was originally rejected; and
7. Challenger cannot challenge a petition more than once [BOE, 2016.10.13, pp. 2–3].

These rules essentially spell out the “facial completeness” standard that Secretaries of State have used to evaluate past challenges: the Secretary of State can only check whether all lines on the form appear to contain required information. The Secretary of State cannot investigate anything beyond whether signers were registered voters at the time they signed. If petition challengers have evidence of other violations that would disqualify the petition, they need to take that evidence to court.

Unfortunately, these conditions go beyond codifying current practice; they raise two new significant barriers to challenges. First, on statewide petitions, the Board of Elections proposes limiting challenges to the five-percent sample of signatures the Secretary of State takes, not a review of the entire petition. Challengers can only ask the Secretary to review the signatures she looked at, not other bogus signatures or the petition in its entirety. If challengers waste the Secretary’s time by including even one signature outside the five-percent sample or any other item included in the above conditions, the Secretary throws out the whole challenge. Finally, the proposed changes would require that challengers’ submit their original affidavits to the person in charge of the election by the challenge deadline. In both of the statewide petition challenges I’ve conducted, I’ve been able to submit my affidavit electronically and drop the original paper affidavit in the mail before the deadline. Requiring that challengers deliver the original paper affidavit by the deadline effectively reduces the time available to work on a challenge by at least one day (and adds the cost of overnight delivery or a long, hard drive to Pierre). In a large, rural state where maybe 3% of the population lives within an hour’s drive of the capital, and when we have technology that allows the instant and secure transmission of official documents, requiring paper originals to meet a deadline is an unnecessary burden.

In more anti-electronic sentiment, the Board proposes to get serious about keeping voter registration information (and the money the state can make from it) secure. Item #8 clarifies that the voter registration file, in part or in whole, “may not be placed for unrestricted access on the internet.” Item #8 replaces the current Class 2 misdemeanor penalty with a Class 6 felony designation and an additional civil penalty of up to $5,000.

The Board of Elections does offer new parties a big favor in item #24 (pp. 11–12). Currently, to maintain official recognition and automatic ballot access, political parties must field candidates for Governor who win at least 2.5% of the general election vote. In 2014, the Constitution Party and Libertarian Party failed to nominate gubernatorial candidates and thus lost their party status and had to repetition this year. The Board of Elections proposes amending that rule (in the definition of “political party” in SDCL 12-1-3) to allow parties to keep their official recognition if any of their statewide candidates gets at least 2.5% of the November vote. In 2014, the Constitution and Libertarian parties did field candidates for Secretary of State, and both candidates won more than 2.5% of the November vote. Libertarian candidates also beat the 2.5% threshold in 2014 races for Attorney General, Treasurer, Auditor, and Commissioner of School and Public Lands, and the Constitution Party nominated a PUC candidate who drew 5%. Under the proposed rule, the Constitutionists and the Libertarians would have kept their party status after the 2014 election, even without a candidate for Governor. That seems a welcome accommodation for new parties who may not have the big money necessary to run an effective gubernatorial campaign but who do have candidates willing to take on the less expensive challenge of running for other statewide offices.

Finally, on ballot measures, Secretary Krebs has put her frustration with the Pro/Con statements in the ballot question pamphlet into writing. Item #15 would strike the requirement in SDCL 12-13-23 that she obtain and publish statements from proponents and opponents of each ballot measure before the election. Instead, the Secretary would have to publish “the Attorney General’s title, explanation, and a clear and simple recitation of the effect of a ‘Yes’ or ‘No’ vote, and if applicable a prison or jail population estimate. The name, telephone number, mailing address, and email address of each petition sponsor and opposing party as determined by the secretary of state will also be included.” I disagree: publishing Pro/Con statements provides perhaps the only opportunity for proponents and opponents to address the voters on an equal footing, in which fairness the state has a reasonable interest.

Secretary Krebs tells this blog that the proposals are still very much in draft stage (and really, everything is in draft stage until it hits the Legislative hopper). She says the Board of Elections will hold another public meeting to discuss these proposals further.