The Sixth Circuit hears the Kovach/Adamson petition challenge Monday! On July 2 at 2 p.m. Central, Judge Patricia Devaney will hear the argument from independent District 7 House candidate Cory Ann Ellis that her two Democratic opponents, Bill Adamson and Zach Kovach, had too many errors on their nominating petitions to qualify for the ballot:
In May, Ellis submitted to the court evidence that Democratic candidates Bill Adamson and Zach Kovach filed nominating petitions with multiple deficiencies and violations of state law. While the Secretary of State certified those petitions in March, the errors Ellis found, including invalid notary seals and missing notary information, were outside the scope of the Secretary’s review. If the judge accepts Ellis’s findings, Ellis is asking the judge to order the Secretary of State to throw out the invalid petitions and refrain from placing the invalid candidates’ names on the November ballot.
“This not a challenge of the candidates, but of the process,” says Ellis. “This challenge is about protecting the integrity of the petition process and the ballot. Election rules have been established for good reason, and voters expect candidates for public office to follow those rules” [Elect Ellis District 7 House, campaign press release, 2018.06.26].
Representing the Secretary of State, the Attorney General’s office has not yet disputed the facts of the case. Instead, in a motion to dismiss filed June 13, the Attorney General’s office makes two arguments that Ellis’s challenge cannot move forward.
First, Ellis served notice on the Secretary of State’s office but not on the Attorney General’s office as required in any lawsuit against the state [see SDCL 15-6-4(d)(5), and remember this any time you want to sue the state!]. Ellis has since served the A.G. as well, but insufficiency of service of process is a well-recognized defense in statute and practice.
Second, the A.G. reaches back to 1934, 1940, and 1942 for case law stating that candidates unopposed in the primary automatically advance to the general election and cannot be challenged:
The Supreme Court then held that a nominating petition of a candidate who is unopposed at the primary level and thus statutorily advances to the general election “becomes in effect a certificate of nomination.” … As a result, the Supreme Court concluded that a challenge “to the nominating petition which now has the effect of a certificate of nomination comes too late” [Ann F. Mines Bailey, Assistant Attorney General, Respondent’s Motion to Dismiss, Cory Ann H. Ellis v. Shantel Krebs, 2018.06.13].
Under this reasoning, the petitions of Adamson and Kovach became unchallengeable on March 27 at 5 p.m. when the Secretary of State saw that their petitions were the only petitions submitted by Democrats for the District 7 House race (or some indeterminate few days later, when it became clear no Democratic petitions would be arriving by registered mail) and Adamson and Kovach faced no primary. Of course, that same reasoning should also have insulated Mary Perpich’s original petition from challenge. Perpich filed her petition for District 7 Senate on March 26. She was the only Democrat to do so and thus faced no primary. Her sole Democratic District 7 Senate petition would have instantly turned into the magical certificate of nomination to which the A.G.’s motion to dismiss refers. Nonetheless, on April 3, Hughes County GOP chairman and SDGOP Central Committee member Michael J. Mehlhaff filed a challenge in the Secretary of State’s office against Perpich’s petition (citing the same bogus-notary issue that Ellis cites in her court challenge), and on April 4, Secretary of State Krebs decertified Perpich’s petition. We thus have a practical example this year of a successful petition challenge that the Attorney General’s odd interpretation should have forbidden.
In contending that citizens cannot challenge the petitions of candidates not facing primary challenges, the Attorney General seems to be attempting to legislate from the Executive Branch and strike the very clear language of SDCL 12-1-13, which gives “any interested person” five business days to challenge any nominating petition, and SDCL 12-1-16, which like 12-1-13 protects our right to pursue “any other legal remedy to challenge the filing of a nominating, initiative, or referendum petition.” I don’t think the Attorney General has the power to use 1940 case law to annul current statutes enacted in 1999.
But we’ll see what Judge Devaney says on Monday! 2 p.m. Central, Hughes County Courthouse!