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Petition Laws Conflict: Statute Says Illegally Collected Signatures “May Not Be Counted”

Petition challenges during the past couple of election cycles have gone nowhere in the Secretary of State’s office, largely because our Secretaries of State have claimed that their function in reviewing petitions is purely ministerial. As reaffirmed by new limits on petition challenges in 2017 House Bill 1035, the Secretary of State can only review petitions for facial completeness—i.e., she can look at the marks on the papers but not any external information about how those marks got there.

Yet as I page through our petition law, SDCL 2-1-14 leaps to my attention:

All signatures secured in a manner contrary to the provisions of this chapter may not be counted.

That short, sweet sentence in the chapter on initiative and referendum seems to create a pretty clear duty for the Secretary of State and any other election official not to count illegally secured petition signatures. The official hand-tying of HB 1035—now written into SDCL 2-1-17.1—seems to contradict that duty. If the Secretary of State receives information that signatures have been secured illegally—without a proper witness, by an out-of-state or underage circulator, by circulators being paid by the signature—SDCL 2-1-14 compels the Secretary to not count those signatures.

Several initiative petitions are circulating now and are due in Secretary Krebs’s office by November 6. If anyone has evidence of hinky circulating practices, this November may provide an opportunity to test the duty prescribed in SDCL 2-1-14 with the new restrictions on carrying out that duty in SDCL 2-1-17.1


  1. Neal 2017-09-12 09:31

    May, not shall. That makes a big difference in a statute.

  2. Donald Pay 2017-09-12 09:37

    The circulator is always the first and main guarantor that petitions signatures are gathered legally. That’s why the circulator’s oath is important. If there is no circulator witnessing signatures that automatically invalidates those signatures, and if the circulator has filled out the oath falsely, that should automatically invalidate all of that circulator’s petitions. That circulator should also face criminal penalties. I think criminal sanctions should also apply to the sponsors. Ultimately they are responsible for the circulators they use or don’t use.

    In the case of Mickelson’s orphaned petitions, Mickelson ought to spend a few days in the slammer and vacate his seat in the legislature. It’s inexcusable. And I like that proposal. But as bad as that was, it pales in comparison to what candidates get away with. I’d bet 50 percent of those petitions are gathered illegally.

    I’ve thought for a long time that sponsors, candidates and circulators need to go through some minimal training with the SOS office on how to and how not to collect signatures. That is far more important to the process than the stinking AG explanation and all the other bureaucracy that legislators have stacked on the process since 2000. It wouldn’t have to be a big deal. An hour or two should do it, and it could be put on the SOS website.

    The best thing that could happen is to get rid of the pre-petitioning BS added since 2000, the goofy deadlines, etc., but provide education on how to collect signatures, and a badge to show you know WTF you are doing.

  3. JLB 2017-09-12 11:20

    It isn’t contradictory. You can challenge everything in court, but only non-prohibited matters before the secretary of state.

  4. Cory Allen Heidelberger Post author | 2017-09-12 12:40

    Neal, “may not” has the same prohibitory force as “shall” has mandatory force. I’ve seen multiple LRC recommendations on initiatives where the writers say “shall not” but LRC says use “may not,” since “may not” has the clearest (in LRC’s eyes) prohibitory force. “May not be counted” means exactly that, may not be counted, without qualification.

    JLB, given that “may not,” I contend the statutes do contradict. SDCL 2-1-14 says illegally collected signatures may not be counted—period. No qualification, no exception. Nobody is allowed to count them for any legal purpose. A subsequent statute telling the SOS to count signatures without regard to information about their illegal collection is indeed contradictory.

    Consider the extreme case: suppose I walk into Shantel’s office with a petition. I tell her, “By the way, every signature on this petition was collected by individuals whom I paid $1 per signature, in violation of SDCL 12-13-28.” Must the Secretary count those signatures or must she not?

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