Delegates to the South Dakota Democratic Convention received the following e-mail this morning:
The South Dakota Democratic Party will be reconvening the 2018 State Convention on August 10 at 6 pm in Sioux Falls at Icon Event Hall (402 N. Main) in Sioux Falls with convention Co-Chairs and Constitutional candidates to certify their place on the ballot. The purpose of reconvening is to comply with requirements that officers of the convention sign the candidate certification in addition to the State Chair.
You’re invited to attend and witness the process; however, delegate attendance is not required. This is a small procedural step in the process of certifying our Constitutional candidates [Ann Tornberg and Sam Parkinson, e-mail to Democratic delegates, 2018.07.10].
What? Did someone drop a ball?
No, party exec Sam Parkinson tells me. The Dems followed the same procedure as in the past:
Yes, we’re re-convening for procedural reasons. We had followed past precedent from previous conventions that were certified by the Secretary of State, however the Secretary of State informed us that we need to re-sign our document informing them of our elected Constitutional candidates [Sam Parkinson, e-mail to DFP, 2018.07.10].
The Secretary of State’s own letter to the Dems seems to confirm that rejecting the Democrats’ filed certificates of nomination is a departure from past practice and guidance from the Attorney General:
Today our office received the enclosed letter. Based on this letter, we re-examined the certifications of nomination which we received from the South Dakota Democratic Party and consulted again with the Attorney General’s office concerning their prior advice in this matter which was to accept and file the certification [Secretary of State Shantel Krebs, letter to SDDP, 2018.07.09].
Wait a minute: the Attorney General said accept the certifications, and the Secretary accepted them? Shouldn’t the conversation end right there? Per the precedent affirmed in Ellis v. Krebs just last week, certificates of nomination are holy. Once filed, the Secretary of State has no authority to rescind them or decline to place certified nominees on the ballot.
Krebs certified all seven of the candidates nominated at the Democratic convention on June 15. Their names all still appear today on the Secretary’s online candidate list:
What does it take to get the Secretary of State to ignore the freshest court precedent on election law exercise power she doesn’t have? Why, just a letter from the Secretary’s party chairman, Dan Lederman, who wrote Krebs yesterday demanding the decertification of the Democrats’ statewide candidates.
The Dems did screw up. Statute (SDCL 12-5-22) says the certification of nomination needed the signatures of the convention officers and needed to arrive in the Secretary of State’s office within three business days of the close of convention—in this case, by 5 p.m. June 20. The certificate of nomination met neither criterion.
However, Secretary Krebs accepted those certificates and certified the candidates. The South Dakota Supreme Court said in 1934 in Jacobsen v. Morrison that the Secretary of State has no authority to rescind a certificate of nomination, and statute provides no overriding statute authorizing a challenge of such a document. Last week, Judge Patricia Devaney said one cannot challenge a certificate of nomination issued to a candidate who did not meet legal criteria for accessing the ballot but who is unopposed in a primary, even though there is statute (SDCL 12-1-13) that appears to override that immunity and guarantee the right to file just such a challenge. There is no statutory provision for challenging a certificate of nomination issued at convention. Ellis v. Krebs and Jacobsen v. Morrison say the seven Democrats must remain certified nominees to be printed on the ballot; however, as with so many other matters, the rule actually appears to hold only until Republicans want it otherwise.
But hey, no need to lawyer up: Democrats will simply get back together, sign the necessary papers, and express-deliver them to Secretary Krebs (Dems re-convene August 10; certificates of nomination must reach Krebs by August 14!).
And you know, a second convention could be fun. If my friend John Kennedy Claussen is still worked up about our nomination of a lifelong Republican for lieutenant governor, he could round up some fellow delegates, take over the proceedings on August 10, and replace Billie Sutton’s pick with a bluer running mate! Or we could handle the renomination with a good old-fashioned Cannonball Run: have the convention officers sign two different certificates of nomination for lieutenant governor, one with Michelle Lavallee’s name, one with John Kennedy Claussen’s. Hand each certificate to each candidate’s supporters. The first letter to reach Pierre wins. On your marks, get set….