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Secretary Krebs Ignores Ellis Ruling at Lederman’s Behest, Requires Dems to Reconvene, Renominate Statewide Candidates

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….


  1. Greg Deplorable 2018-07-10 16:41

    I’m starting to like this Democrat party that nominates Republicans.

    Maybe you can find more at the next convention.

  2. OldSarg 2018-07-10 17:02

    Getting together again is a good idea. Fellowship, fun, a place to commensurate with like brethren. Maybe play a little corn hole. Have a little dinner. Guess which restroom the folks will pick to use. Going to be fun.

  3. grudznick 2018-07-10 18:00

    Follow the rules, people.

  4. mike from iowa 2018-07-10 18:09

    Grudz, can you maybe be a tad more specific of which people need to follow the rules?

    Because it sure looks like your wingnut lady friend is not following the rules. Or maybe you capitulated and meant both sides do it.

  5. grudznick 2018-07-10 18:19

    The incompetent Ms. Tornberg, as she has shown herself to be, must follow the rules.
    Ms. Krebs should have been following the rules in the first place. Ms. Krebs don’t care any more.
    And the tokers of the demon weed need to follow the rules and stop toking.

  6. mike from iowa 2018-07-10 18:35

    Nice answer, Grudz. Civil as all get out.

  7. grudznick 2018-07-10 19:44

    Indeed. I am known for both my wisdom and politeness, almost as much as I am known for getting goats.

    Did you know Ms. Krebs actually complained to me?

  8. Cory Allen Heidelberger Post author | 2018-07-10 21:27

    Mike, Grudz was plenty specific on first pass. Follow the rules. The specific rule is SDCL 12-5-22, which requires signatures of the convention officers on certificates of nomination that arrive in the SOS office within three business days of convention’s close, meaning 5 p.m. June 20. The certifications did not arrive until June 22, and they were not signed by the convention officers.

    Grudz, when did the SOS complain to you, and about what?

  9. Debbo 2018-07-10 21:38

    “however, as with so many other matters, the rule actually appears to hold only until Republicans want it otherwise.”

    Nice state constitution. That is in the State of South Dakota Constitution, right? The SDGOP wouldn’t be deliberately breaking the law, would they? I mean, they’re the Law and Order party, right? Or does that mean that they’ve decided the laws are whatever they say they are and they’ll maintain whatever order suits them in the moment?

    Can anyone clarify for me? Gracias.

  10. John Kennedy Claussen, Sr. 2018-07-10 22:30

    You know, I have always been fond of Pontiacs, especially ’69 GTOs, but a Cannonball Firebird would be fun to own and race, too… ;-)

    In the next couple of weeks, I’ll be talking to fellow delegates about what to do; but my daughter is getting married on the 21st and I’ll be on vacation in early August, so my plate is already full…..But we will see.

    And an argument can be made to accept what is and make do with it, but I will see how the calls go. My first call, however, will be to Kooper.

    As far as the case law on this issue, I agree with you Cory, that it looks good for the Democrats, if they were to pursue it; but then again, I can see our conservative courts – with all due respect – becoming judicially active, too, when it is convenient for them, in order, to backup the SOS and AG.

    Plus, without reconvening, and then losing in court, then what do we have? At least with the reconvening, we have a potential and legal slate…. Maybe we should pursue both or two angles…. We are already having two conventions…. (And maybe two Lt. Gov. nominees, too? ;-) )

  11. Cory Allen Heidelberger Post author | 2018-07-11 05:54

    Debbo, the Republicans haven’t written their supremacy explicitly into our constitution, but this rescinding of certificates of nomination by Secretary Krebs just one week after a court ruling saying such certificates, once issued, cannot be rescinded, presents us with two completely inconsistent interpretations of election law. The rescinding and the court ruling are too close together to be explained away as forgetfulness. The only uniting motivating principle I can see is party self-interest.

  12. Cory Allen Heidelberger Post author | 2018-07-11 05:58

    JKC, Lederman has quite effectively put our backs to the wall. I agree that we hardly dare put all our eggs in a legal challenge basket: we don’t have the time or money to spare on a gamble with one Rounds/Daugaard appointed circuit court judge. Plus, we can’t argue “substantial compliance” with statute, since we screwed up two points of on statute. We must execute a new convention swiftly and with absolutely no deviation from law or proper procedure and no appeal to leniency or generous interpretation of law. Negating our first convention and driving us to a hasty, erroneously executed second convention is Lederman’s best chance of getting his guy Ravnsborg elected.

  13. leslie 2018-07-11 08:41

    Krebs frankensteinian love interest? 2007 stat amend to a vague (“certified by officers of convevtion”-who? can’t CEO sign for lesser officers?) and unreasonably restrictive in a red ‘restrict the vote’ state (3 days!? IN the SOS Pierre office? Not ‘date of mailing’? In a state 400 miles long?) Who came up w/ that statute? Hmmmmmmm

  14. Rorschach 2018-07-11 11:11

    The leadership of the Democratic Party has become an embarrassment. Mass exodus of Democratic registrants, screwed up notarizations of candidate petitions, a stupid 4th of July tweet by the ED – since prompting an apology, and now this.

    Bjorkman and Seiler are going to have to do for themselves. If they accept any “help” from the party it is likely to bite them in the arse.

    Now Krebs clearly screwed up here too. If you read the letter she sent out she even cited one statute incorrectly. I think Grudz is right. She doesn’t care anymore.

  15. Cory Allen Heidelberger Post author | 2018-07-11 15:09

    Ah! 12-15-17 instead of 12-5-17. Good eye, Ror! Not an error that nullifies the Secretary’s action or our need to hold a second convention, but still an important sign of sloppiness.

    I would like to believe that, relieved of the campaign pressure, Secretary Krebs and Attorney General Jackley will be able to provide us with six more months of impeccable, undistracted service.

    But let’s not overplay the GOP control of the narrative, Ror. The 4th of July Tweet fuss was bunk. The only people hollering were GOP spinmakers. Sam’s apology was unnecessary.

  16. John Kennedy Claussen, Sr. 2018-07-12 02:23

    The last time I remember two conventions, was when McGovern replaced Eagleton with Shriver in ’72. In retrospect, I think that was a mistake. Nothing against Shriver, but as a “Monday morning quarterback,” I think it would have been best to have kept with Eagleton back then…. As much as I am troubled by having Ten Haken’s co-chair on the ticket (He hides from Pride, but she attends one in Pierre (?)), the more I think about this, I think we need to take the hit on this and move on and not reinvent. Although, it is tempting, I must admit. A change in midstream could show indecisiveness, but a failure in battle does not mean that the war is lost…. But what does trouble me, however, is why is our State Chair claiming this is about signatures when it is also about timeliness, too? For if we are the Party of transparency, then virtue begins at home….

  17. Cory Allen Heidelberger Post author | 2018-07-12 08:56

    John, I appreciate your cool, fact-based analysis of the situation. I am willing to take the position that we had our convention and heard the will of the delegates properly assembled. An attempt to use this second event, sure to be attended by a less representative group of delegates, as an opportunity to overturn the expressed democratic will of the properly assembled delegates in June, would be a net negative on principle and practical terms. The party leadership committed two grave errors jeopardizing seven statewide candidates and the chance for South Dakotans to express their will in November. We delegates have an obligation to rectify those errors by ensuring that the August 10 convention is conducted with excruciating attention to proper procedure and that the certification of nominations is properly signed and timely delivered. We fix that error, remove this distraction from the campaigns, and help our candidates win on November 6.

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