Board of Elections Approves New Petition Challenge Rules, Revives RL 19 Attack on Independents

Last updated on 2017-01-03

The South Dakota Board of Elections mustered a meager quorum today (five of seven members on the conference call at the start, but only four of seven members on the line for voting) to discuss final revisions to their proposed legislation for 2017. Many of the changes were small technical issues (more election nerd material!), but by the end of the meeting, the Board of Elections unanimously approved another attack on independent ballot access.

First, the Board tackled petitions. The Board finalized a proposal to list in statute elements of nominating, initiative, and referendum petitions that cannot be challenged with election officials and must instead be taken directly to court:

1. Signer does not live at address listed on the petition;
2. Circulator does not live at address listed on the petition;
3. Circulator listed a residence address in South Dakota but is not a South Dakota resident;
4. Circulator did not witness the signers;
5. Signatures not included in the five percent random sample; and
6. Petition that was originally rejected [South Dakota Board of Elections, proposed statutory language, document circulated 2016.11.16].

These restrictions on petition challenges respond to a suggestion made by Judge Mark Barnett last summer during hearings on petition challenges that the Board clarify in statute that election officials can only look at matters of “facial completeness”—i.e., petition details that election officials can recognize as correct or bogus just by looking at the petition sheets—and voter registration. Petition challengers must take any other concerns to court, not to the Secretary of State.

But #5 goes further on statewide petitions, restricting challengers’ ability to look outside the 5% sample the Secretary of State reviews for completeness. I find that restriction unfair. The Secretary looks at some facial matters prior to and independent of the 5% sample. The 5% sample exists solely to spare the Secretary the trouble of looking at every signature line; if citizens are willing to go to that trouble, they should be able to ask the Secretary to review an itemized list of facial errors they identify outside the 5% sample.

#6 provides a clarification that goes in the wrong direction. Last March, medical cannabis advocates challenged Secretary Krebs’s rejection of their initiative petition. That challenge revealed an apparent gap in our petition statutes: state rules are relatively clear on how to challenge validated petitions, but they aren’t clear on whether petitioners can challenge the Secretary’s rejection of their petitions. In #6, the Board of Elections is saying they cannot, at least not without going to court.

That proposed rule puts petitioners and challengers on an unequal playing field. People who don’t want a petition to go through can hope the Secretary of State finds enough errors to toss a petition. If petition opponents feel the Secretary errs in validating a petition, they can challenge her directly before resorting to circuit court. Under this new rule, petition circulators get no such pre-court recourse for errors by the Secretary. If the Secretary rejects a petition based on errors in sampling, identifying facial errors, or reading voter registration, petitioners have to lawyer up to fix those errors. Goose/gander: all parties interested in a petition should get a chance to air their concerns with the Secretary’s handling of petitions without going to court.

The Board of Elections then turned to Legislative and county races and snuck in a bit of just-defeated Referred Law 19 to continue the war on independent ballot access. The proposal originates in the concern that, in the seven counties that use vote centers (i.e.,Brookings, Brown, Hughes, Hyde, Potter, Sully, and Yankton, where voters can go to any polling place instead of reporting to their one geographically determined precinct to vote), election officials can’t get a clear count of how many people in each precinct cast votes for Governor. For example, here in Brown County, I can truck on down to Stratford, which is in District 2, and still cast my District 3 ballot. Brown County will know that I voted, but it won’t know whether I voted for Governor.

Whether I voted for Governor matters because we currently use the gubernatorial vote count to determine petition signature requirements. To run for Legislature, candidates have to collect signatures from either fifty people or “one percent of the voters who cast their vote for the party’s gubernatorial candidate, whichever is less.” Since vote centers foul that district-level gubernatorial count, the Board last month considered passing flat thresholds just for vote-center counties: 50 signatures for Legislative candidates, 30 signatures for county candidates, 15 signatures for county commission district candidates. The Board rejected that idea and asked for something else. Secretary Krebs thus appears to have cribbed Section 6 of Referred Law 19 with this proposed amendment to SDCL 12-6-7.1 and added a gratuitous increase in signatures:

Notwithstanding the provisions of § 12-6-7 a nominating petition for a candidate for office in the State Legislature, county political public office, and county party office shall be signed by not less than fifty sixty voters or not less than one percent of the registered voters who cast their vote for in the candidate’s party‘s in that legislative district, county or county commissioner district gubernatorial candidate at the last general election, whichever is less. The petition shall clearly designate the senatorial or representative district for which said individual is a candidate [BOE, 2016.11.16].

Notice how far this moves from the original vote-center counting problem. This proposal applies to every county, not just the seven where vote centers foul the gubernatorial count. Raising the default signature count from 50 to 60 has nothing to do with the counting problem. And as with Referred Law 19, basing signature counts on total registered voters instead of turnout in the gubernatorial election practically guarantees that everyone will have to get more signatures, meaning more candidates will fall short, and voters will have fewer candidates on their ballots.

Secretary Krebs then brought forward an even bigger ker-whallop on independents with this proposed new section for Chapter 12-7:

The number of signatures required shall be signed by not less than one percent of the total number of registered voters in that legislative district, county or county commissioner district at the last general election. The petition shall clearly designate the senatorial or representative district for which said individual is a candidate [BOE, 2016.11.16].

The Secretary’s handout to Board members indicated that in District 10, in and east of Sioux Falls, independent candidates for Legislature would see their signature requirement jump from 71 to 157. Similar increases would happen in most districts.

Alarmingly, the sentiment of the committee seemed to be, serves those independents right! Board member Linda Lea Viken noted that independent registration is increasing and they can collect signatures from any registered voter. Secretary Krebs noted the additional month independents get to circulate petitions. Viken thus concluded that independents have greater opportunity to get voter signatures than party members.

I understand the need to settle on one simple, objective standard for determining signature requirements. 1% of registered voters is a simple, objective standard which, says Secretary Krebs, better captures who potentially could nominate candidates in each district.

However, the registered vote count is not as fair a standard as the equally simple and objective standard of actual turnout. Even vote centers record turnout by district. We don’t know which ballot lines those vote center voters may have marked, but we know they cast ballots. Turnout better represents people who are likely to bother to sign nominating petitions. Registration numbers include lots of people who may not have voted for the last six years and thus are far less engaged politically than active voters.

And as I explained in numerous conversations about Referred Law 19, independents do not enjoy any unfair advantage in collecting petition signatures. They have no party to hold meetings and organize petition drives. The “extra month” they get to circulate petitions recognizes that, more often than not, independent bids are reactions to the failure of the major parties to field acceptable candidates. Practically, most independent candidates don’t get an extra month to circulate; they have only that month to circulate.

Instead of beating up on independents, we could stick with a turnout calculation and keep signature requirements where they are now. We could set hard numbers for each district close to current levels. We could adopt the suboptimal statewide formula of requiring independents to get essentially the sum of the Republican and Democratic signature requirements. Any one of those options would resolve the vote-center uncountability without further restricting independent ballot access.

The Board of Elections approved these measures with minor amendments. These proposals will thus bubble up in the Legislature, where we’ll have to seek some Republican support for easing the petition restrictions and ending the assault on independent ballot access.