Two days after the South Dakota Supreme Court nuked their doomed challenge of the attorney general’s explanation of Initiated Measure 26, the pharmaceutical lobby dispatched Redstone Law Firm lawyers Matt McCaulley, Lisa Prostrollo, and Jon Hansen (who wants to take his shiny new law degree back to the Legislature) to sue Secretary of State Shantel Krebs to keep the prescription drug price cap off the November ballot. On Friday, Sixth Circuit Judge Patricia Devaney granted their wish, temporarily, ordering Secretary Krebs to come to court on August 1 and 2 and respond to the pharmaceutical lobby’s charge that the IM 26 petition lacks sufficient signatures to qualify for the ballot.
Recall that on April 11, Secretary Krebs ruled that the prescription drug price cap qualified for the ballot thanks to a petition containing 15,868 valid signatures. Secretary Krebs didn’t actually count and check all those signatures; she followed the statutory process that called on her to take a random sample of 710 signatures out of the 22,091 eligible signatures submitted, check that sample to find the percent valid, then multiply that percentage by the total eligible to see if they exceeded 13,871, the minimum number of voter signatures required to put an initiated measure on the ballot.
Big Pharma, via its cleverly named “South Dakotans Against the Deceptive Rx Ballot Issue” (which they now get objective reporters to say on the air every time they report this lawsuit) engaged Lincoln Strategy Group of Phoenix and two P.I.s from All Star Investigations of Sioux Falls to analyze petitions and check circulator addresses. Those consultants and investigators submit that the following IM 26 petition circulators either do not live at the addresses they wrote on their circulator oaths:
- Vanessa Torres-Lopez (114 signatures)
- Angel Meleah Boyd (346)
- Zackeriah Stacey (112)
- Manuel Hatchett (153)
- Lori Stacey (167)
- Vaughn Blaschke (1,597)
Sending private dicks out to knock on circulators’ doors has precedent: the payday lenders tried that tactic in 2016 when they checked up on circulators of the IM21 petition to cap payday loan interest rates at 36%. The payday lenders included charges of circulators not living at their sworn addresses in their failed challenge to the IM 21 petition. That 2016 challenge failed in part because the payday lenders’ claims were bogus: the circulators existed and gave legitimate addresses.
Additionally, the petition challengers allege that the following circulators may not be legal residents of South Dakota, as required by SDCL 2-1-1.3:
- Quintus Cornish (315)
- Michael S Brenes (539)
- Mark Rohrbaugh (758)
- Gary Robinson (2,137)
I don’t have data on all of those individuals, but I have heard Quintus Cornish’s name in discussions of past petition drives that may have involved out-of-state circulators. A Gary Robinson who claimed in his 2015 circulator oaths to be from Sioux Falls circulated the payday lenders’ dubious petition for their fake rate cap amendment.
The signatures gathered by these ten individuals add up to 6,238. If they did indeed collect those signatures in violation of South Dakota petition law, the Secretary must toss those signatures. That would leave the IM 26 petition with 15,853 countable signatures, still qualifying with 14.29% more than minimum signature count.
Big Pharma’s team also dug into the petition signatures themselves and claims to have found 414 duplicate signatures, 1,371 illegible signatures, 172 signatures on petition sheets for other measures, 6,975 signatures with no corresponding record in the voter registration file, and 627 signatures that break other rules. Throw out those 9,559 signatures, and the IM 26 petition drops 12,532 countable signatures, 9.65% below the minimum qualifying threshold.
Big Pharma finds that 2,665 of those allegedly bogus signatures were collected by the allegedly bogus circulators. Remove that overlap, and Big Pharma claims that a net 13,132 signatures, 59.45% of the total submitted, are invalid. Accept that net challenge, and the IM 26 petition is left with a meager 8,959 signatures, 35.41% shy of the 13,871-signature requirement.
On bogus signatures alone, Big Pharma is alleging a signature error rate of 43.27%, significantly higher than the 28.17% error rate Secretary Krebs calculated from her random sample last month. According to the state’s random sampling formula, there is only a 2.5% chance that the error rate is greater than 31.79%. The chances that the Secretary was as far off the actual error rate as Big Pharma claims is so remote (less than 1 in 10,000) that standard probability tables don’t even list the probability.
Big Pharma’s claim of illegibility is likely inflated: it’s easy not to read something one doesn’t want to read. When payday lenders tried to challenge the legibility of signatures on the IM 21 36% payday loan rate cap in 2016, Judge Mark Barnett retorted, “I saw hundreds of examples of what you claimed were illegible (signatures and addresses) when, without my glasses, I could look across the room and clearly make them out….”
The claim of non-voters on the petition is far more concerning. One possible source of error is the fact that Lincoln Strategy Group “secured a recent copy of the voter file” to check voters. Assuming “recent” means this April, their data may not have reflected changes to the voter file since signatures were collected last fall. If I’m not mistaken, the Secretary of State’s office checks the random sample using archived data showing the signer’s voter registration status on the date of signing.
So how much danger is there that this challenge kicks IM 26 off the ballot?
- Dismiss the bogus address challenge, keep the non-resident challenges (especially Gary Robinson’s, because I’m suspicious of any circulator who worked for the payday lenders): strike 2,252 otherwise valid signatures.
- Ignore the illegibility claims: strike 0.
- Accept the claims of duplicates and wrong petition (those are pretty objective, hard to fabricate): strike 586.
- Scale down the other claimed rule violations by half, assuming challengers apply rules with zeal that liberally construing judges will not: strike 314.
- Spot the challengers a generous number of their “signer not registered to vote” challenges (I do some math and guess that 73% of their voter challenges is the maximum number that could fall within the margin of error defined by the Secretary’s random sample): strike 5,122 votes.
Result: 13,817 surviving valid signatures, 54 shy of the threshold.
That’s under what I will suggest is a generous, optimistic read of Big Pharma’s claims based on past petition precedent. Ask for percentages, and I’ll say there’s better than a 60% chance that IM 26 survives this challenge and makes the ballot.
Surprisingly, Judge DeVaney thinks we should wait until August 1 to find out. I understand there’s a lot of data through which to sift. But the payday lenders filed their bogus petition challenge on June 15, 2016, and Judge Barnett got that case into court and ruled by August 11. On the same timeframe, Judge Devaney ought to be able to hear this case, filed May 11, by July 7. Time is of the essence not only for Secretary Krebs, who must certify copies of all ballot questions to county auditors by August 14, but for proponents and opponents of IM26, who have a keen interest in knowing when or if they can start their full-tilt campaigns to educate the voters.
The latter time crunch works in favor of the big-money opponents of this measure. The longer they can keep IM 26 tied up in court, the more uncertainty they create for the sponsors in their fundraising efforts. The court delay also forces proponents to wait longer before committing to media buys for the fall. IM 26 backers already had to wait an absurdly long five months before receiving certification of their petition; now they must wait two and a half months more for the judge’s attention. Every day that the court waits to hear and resolve this case is another day that other campaigns—ballot questions and candidates—will be snapping up airtime, column inches, and billboards, making it a distinct possibility that IM 26 sponsors who go shopping in August will find all the good eyeball space bought up. (Besides, I have campaign cards to print, and I need to know if I can include IM 26 on my ballot question guide!)
Judge DeVaney’s timing may not make a practical difference for final resolution of the IM 26 petition. If Judge DeVaney held her hearing next week and ruled in IM 26’s favor, Big Pharma would keep lawyers McCaulley, Hansen, and Prostrollo rich by filing all the appeals they could right up until the August ballot-printing deadline.
IM 26 thus waits in limbo. We thus do not know if our total ballot question count on November 6 will be five or six… or maybe fewer? I hate to mention this, but recall that last fall, pretty much every ballot question group in the field collaborated, circulating each other’s petitions. If Big Pharma’s private dicks are on the ball, and if Michael Brenes, Quintus Cornish, Mark Rohrbaugh, and Gary Robinson really are out-of-staters who illegally circulated petitions, then they likely stained more than just the prescription drug price cap petition. Ambitious challengers could glom off Big Pharma’s work and challenge G. Mark Mickelson’s initiative petitions for the tobacco tax for vo-techs and the ban on out-of-state contributions to ballot question committees. Anyone game for bringing Speaker Mickelson to court alongside Rick Weiland and Drey Samuelson?