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Court Rejects District 7 Petition Challenge; Arbitrary Case Law Deadline Allows Illegal Candidates on Ballot

I should be happy: Democrats Bill Adamson and Zach Kovach have survived a court challenge to their petitions and will remain on the District 7 House ballot.

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.

Hey, have you noticed how the Attorney General seems to be getting really good at letting people who’ve done bad things get off without much punishment?

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.


  1. Rorschach 2018-07-03 09:20

    March 27, 2018: Deadline for party candidates to submit petitions
    April 10, 2018: Date it was known the Democrats’ petitions were fatally flawed
    April 24, 2018: Deadline to get into the race as an independent
    May 3, 2018: Date Ellis started (but not perfected) process to challenge Democratic petitions

    Ellis purposefully waited until it was too late for these Democratic candidates to file as independents for the race before starting her challenge of their petitions. She may have even succeeded if she had promptly engaged the services of a lawyer to help her correctly prosecute her challenge to the petitions. Don’t feel sorry for someone too ignorant to know when they are in over their head or too cheap to hire the services they need if they did know.

  2. Cory Allen Heidelberger Post author | 2018-07-03 09:50

    Am I to take a blanket position against citizens who cannot afford legal services?

    Could the Democratic candidates be similarly criticized for not recirculating as independents when their violations of petition law became publicly known?

    Is a citizen to be criticized for taking time to study the law and weigh the pros and cons of mounting a legal challenge?

    And should the process for challenging petitions and protecting the integrity of the ballot be so difficult that it cannot be done without expensive legal assistance?

  3. Cory Allen Heidelberger Post author | 2018-07-03 11:03

    But setting those points aside, Ror, are you attempting to enunciate a separate legal standard for establishing a deadline for challenging nominating petitions? Are you saying that the deadline ought to be the last possible filing deadline for independent candidates? By that standard, would anyone ever be able to challenge the petition of an independent or an alternative-party candidate?

  4. bearcreekbat 2018-07-03 11:56

    Cory, can you clarify? Are you saying that Judge Devaney mis-read or misinterpreted the two cited Supreme Court decisions, or are you saying that she correctly understood the Supreme Court’s rulings, but the Supreme Court was wrong?

    Criticizing the State’s position is fine, but if Judge Devaney correctly understood the holdings of the two cases, isn’t she bound to rule accordingly. Past Supreme Court decisions can only be over-ruled by the Supreme Court itself, absent subsequent changes in statutory or constitutional language.

  5. Cory Allen Heidelberger Post author | 2018-07-03 18:40

    Bearcreekbat, I’m probably saying the latter: Jacobsen 1934 and Bakewell 1940 lead to absurd, untenable results in terms of maintaining the integrity of the ballot. The primary deadline is arbitrary; the state has demonstrated (and the two cases do not make clear to me) any compelling interest in disallowing a challenge to a nominating petition of a candidate who has not yet appeared on any ballot, for whom not a single vote has been cast.

    If the dynamic you speak of is correct, if a circuit court judge cannot look at old case law and see it leading to permitting illegal candidates onto the ballot and deem that case law inapplicable, then this case should go to the state Supreme Court immediately. But I’m not a party to the lawsuit, so that’s not my call.

    I guess the only remedy is for Ellis, me, and other legislators who believe in the integrity of the ballot to win and write legislation that supersedes that bad case law. Can we do that? If we enacted a statute saying, “Any interested resident of South Dakota may initiate a challenge to any nominating petition or certificate of nomination of any candidate until ballots printed with that candidate’s name are made available to the public for early voting,” would that nullify the case-law deadline of primary day cited by Judge Devaney?

  6. bearcreekbat 2018-07-03 18:52

    Cory, You bet! Bad case law decisions are often corrected by new legislation that addresses whatever issues the Court has ruled on. Yet, until that new legislation is enacted circuit court judges have no authority to rule contrary to existing Supreme Court precedent regardless of the age or perceived inaccuracy of the precedent.

  7. mike from iowa 2018-07-03 19:07

    BCB for ……whatever office he wants. And Sory, as well. Just not the same office unless it is Potus/Veep.

  8. Krista 2018-07-03 23:58

    I think it should be clarified. The case relied on by the state is from 1940, but the statue was passed in 2004 (or more recent…I can’t remember off the top of my head) and appear to be conflict with one another. So, yes a law should be passed to overturn this court case, which according to the statute and testimony by Secretary Krebs, this has already been done. It’s a disappointing ruling. Party shouldn’t matter. The only people on the ballot should people that followed the rules. It’s clear in the facts of the case that they did not follow the rules. It’s regretable that they weren’t notarized by an actual notary, but that’s the fact of the matter. There is no malice on Ellis’s part, just a clear request for transparency and respect for our political process.

  9. Cory Allen Heidelberger Post author | 2018-07-04 09:28

    If you can find that specific statutory example, let us know! There is clearly a conflict between the case law and the letter and intent of subsequent statute.

  10. Cory Allen Heidelberger Post author | 2018-07-05 18:17

    BCB, I take it that’s what happened with SD v. Wayfair, right? The state asked the circuit court and SD Supreme Court to rule against SD specifically because those courts couldn’t overrule US Supreme Court precedent in Quill, so just hurry it along to the only court that could resolve the issue?

    But what if the complainant could have walked into the Sixth Circuit Court and shown the judge statute subsequent to 1940 that renders Jacobsen and Bakewell obsolete? Could the circuit court judge then ignore past precedent?

  11. Curt 2018-07-05 18:30

    If the newer statute conflicts with older case law, should that not have been made clear at the time the statute was enacted? The situation as it exists now is absurd. The law is meaningless if the courts can choose to ignore it.

  12. bearcreekbat 2018-07-05 18:33

    Definitely Cory! If the language of a statute is changed in any substantive manner after a prior decision interpreting an older version of the same statute, it is a whole new game. The circuit court is then required to state a new interpretation of the modified statutory language and is not bound by the rule of stare decisis. But even in such cases a circuit court judge will be informed by past Supreme Court rulings, if any, on similar statutory issues.

  13. bearcreekbat 2018-07-05 18:38

    Plus, I think you are correct on Wayfair. It is what the State frequently seeks to do on abortion, namely enact statutes contrary to Roe in the hope that the SCOTUS will reverse or overrule Roe’s Constitutional ruling. Nevertheless, lower court judges still have to follow Roe until it is modified since the Constitution, as interpreted by the SCOTUS, trumps all statutes, federal or state.

  14. Cory Allen Heidelberger Post author | 2018-07-05 19:08

    Well, Curt, that was the point Ellis made in her filings with the court: throughout the crafting of current petition law, and in all guidance offered by the SOS on petition challenges, there is no mention of any time limit on petition challenges in court.

  15. Curt 2018-07-06 00:06

    So, Cory, please explain (as best you can) wtf Judge Devaney is doing here. When we ignore law and courts do likewise, how far are we from anarchy?

  16. Cory Allen Heidelberger Post author | 2018-07-06 10:11

    I really can’t explain, Curt. Judge Devaney ruled from the bench, and we aren’t likely to get a detailed written ruling. BCB’s point about Circuit Court hands being tied by precedent seems to be the only defense for this ruling, which, indeed, suggests the state will not and cannot enforce important chunks of petition law. The only thing restraining us from anarchy is good actors acting in good conscience.

  17. Mike Gunn 2019-12-06 10:31

    Cory: Is it not a Constitutional Right for each individual to either hire legal representation, or a Right to Represent themselves? And on the same standard, is it not the Responsibility of any Judge to ensure that any individuals Rights are not Violated? It also states in the Constitution that No Law that Usurps or creates a vague interpretation of the Original can be enforced and shall be considered Null and Void! It seems in recent past so many laws, regulations, codes and more have been written with the “Grey Area” terminology earmark; in which does exactly that! For those that cannot understand what the “Grey Area” does? ( it creates confusion). These new written laws take short time to enact yet, to reverse or abolish it seems to take years. This is by Political design at best. The Federalist papers, explains pretty much any and all on how the wording in the Constitution, Bill of Rights and Declaration to protect any Violation by Interpretation. One of the interesting facts of the “Grey Area” should be noted as in today’s laws most individuals do not have to actually commit a crime to be charged on the presumption that individual “Could” commit it!

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