But I can’t be happy. Adamson and Kovach have gained access to the ballot illegally. Their nominating petitions contain enough errors to disqualify them from the ballot. The same errors have disqualified other candidates. Independent District 7 House candidate Cory Ann Ellis brought those disqualifying errors to the attention of the state and the court before either illegal candidate’s name appeared on any ballot.
But yesterday, six weeks before any ballots will be printed, Judge Patricia Devaney of the Sixth Circuit shrugged and allowed the Attorney General’s office to negate the letter, intent, and practice of modern petition law with eighty-year-old court precedents.
The state got off Ellis’s case for failure to serve the A.G.’s office when she sued the Secretary of State over the looming placement of these illegal candidates on the ballot. The state acknowledged that, after serving the SOS on May 29, Ellis served the A.G. on June 14.
But that June 14 service date is the state’s excuse for not stopping the still stoppable placement of illegal candidates on the ballot. The state cites two cases, State ex Rel. Bakewell v. Hansen (1940) and State ex Rel. Jacobsen v. Morrison (1934) to establish that errors on petitions must be challenged before the primary. The petition errors making Adamson and Kovach illegal candidates were publicly known April 10. Ellis filed her affidavit to the Sixth Circuit Court laying out these errors on May 3. The Hughes County Sheriff served Ellis’s papers on the Secretary of State on May 29. The primary—in which neither Adamson nor Kovach appeared as candidates, as no third Democrat entered the District 7 House race to trigger a primary—took place on June 5. Notified by the Attorney General’s office of the service requirement of SDCL 15-6-4(d)(5), Ellis served the Attorney General on June 14.
In Jacobsen v. Morrison, the South Dakota Supreme Court held that the Secretary of State places victorious primary candidates on the general election ballot by dint of their certificates of nomination, not by dint of their nominating petitions. Once a certificate of nomination exists, a challenge to a petition cannot stop the Secretary of State from acting on the certificate of nomination. Thus, the court concluded, the petition of a candidate who wins a primary can no longer be challenged. In Bakewell v. Hansen, the South Dakota Supreme Court extended that favor to candidates facing no primary opposition, saying that such candidates’ petitions automatically become certificates of nomination (a position indicated in SDCL 12-6-9, the successor statute to SDC 16.0215 cited in Bakewell).
I froth up over this legal reasoning because it flies in the face of the letter and intent of statute and creates absurd results for protecting the integrity of the ballot.
First, SDCL 12-1-13 establishes the parameters for petition challenges. We may point out a limited subset of errors to the Secretary of State within five business days of her certification of a nominating petition. However, by that statute, “A failure to challenge a petition pursuant to this section, does not deny a person any other legal remedy to challenge the filing of a nominating, initiative, or referendum petition in circuit court.” Statute specifies no deadline for seeking such remedy in court.
The widely accepted practical deadline for challenging petitions in court has been whatever date the ballots are printed. Steve Hickey withdraw his challenge of Republican Annette Bosworth’s Senate petition in 2014 because the court could not hear the challenge prior to the printing of the primary ballot. We have accepted that once ballots are printed and certainly once early voting starts, court intervention would directly disenfranchise voters by cutting into the early-voting period and possibly throwing out marked ballots. But in the case of today’s illegal District 7 candidates, no ballots have been printed. No votes have been cast. The court could stop those illegal candidates from appearing on the ballot without interfering with the election timeline or revoking any cast ballots.
Now come the absurdities:
The state’s reading of Jacobsen and Bakewell doesn’t just set the primary as the deadline for court challenges. By citing the “certificate of nomination” as the controlling document, the state nullifies court challenges against any candidate unopposed in the primary. Since SDCL 12-6-9 “automatically” confers a certificate of nomination on a candidate who draws no primary challenger, we cannot challenge that candidate’s petition in court.
The state’s interpretation of “certificates of nomination” as unchallengeable also means independent candidates cannot be kept off the ballot by court challenge. SDCL 12-7-1 says that independent candidates file “certificates of nomination,” not petitions. Yet in 2014, Mary Perpich successfully challenged to the Secretary of State Clayton Walker’s “certificate of nomination.” If the state’s interpretation were true, Secretary of State Jason Gant could not have refused to place Walker on the ballot as required of him by the certificate of nomination that he had certified before Perpich’s challenge.
The inviolability of certificates of nomination is further disproven by Secretary Gant’s rejection of the Libertarian Party’s illegal nomination of Ryan Gaddy for Public Utilities Commission in 2014. Gaddy was not yet a registered Libertarian when the party nominated him on August 9, 2014. SDCL 12-6-3.2 says parties can only nominate party members. The Libertarians certified Gaddy’s nomination, but Secretary Gant refused to place the illegal candidate on the ballot and got a federal judge’s blessing.
Whether we accept certificates of nomination or Primary Day as challenge killer, the state’s (and the Sixth Circuit’s) interpretation of petition law denies the public the ability to keep a wide array of illegal candidates off the ballot. All independent candidates must advance immediately and unchallengeably to the general election ballot, since they never face primary. Candidates nominated at convention cannot be challenged, particularly if their conventions happen, as usual, after the primary.
The state’s interpretation of election law creates a wild and arbitrary mess of different standards of scrutiny to which the public may hold candidates and the actions they take to access the ballot. It even creates the absurd possibility of forbidding any legal scrutiny of some candidates’ petitions or nominations.
District 7 now has two illegal candidates for State House. The state never contested the plaintiff’s factual evidence that those candidates are illegal. The Secretary of State could with the stroke of a pen (or an eraser, or the Backspace key) prevent those illegal candidates from appearing on the November ballot. But the state and the Sixth Circuit are closing their eyes to this lawbreaking and allowing illegal candidates to violate the integrity of the ballot.