The South Dakota Supreme Court ruled Wednesday, quite sensibly, that substantial compliance with petition law means doing what the law says.
In Thompson v. Lynde, citizens from Deuel County sued their county auditor, Pam Lynde, and the Deuel County Commission for rejecting their referendum petition in July 2017 and not putting new wind farm zoning rules to a public vote. Auditor Lynde rejected two of the three petitions submitted because one omitted the title of the ordinance and the other omitted words from the title and the date the zoning ordinance was passed.
My very smart friend and Third Circuit Judge Carmen Means checked the statute:
If the matter intended to be covered by a referendum petition is the whole of any ordinance or resolution, the petition shall contain the title of such ordinance or the subject of such resolution, and the date of its passage, but if only a portion of such ordinance or resolution is intended to be covered by the petition, such portion shall be set out at length [SDCL 7-18A-17].
State law says “shall contain the title… and the date of its passage.” Judge Means didn’t see any exception to that plain language and upheld Auditor Lynde’s decision. The appellant petitioners cried “substantial compliance!” and “mere technicalities!” But in a pleasant departure from the galling practice of the Sixth Circuit this summer, the South Dakota Supreme Court said the law is not a mere technicality; petitioners have to follow it!
These express conditions in SDCL 7-18A-17 ensure that the face of the referendum petition readily informs a prospective signatory of the nature of the challenged ordinance, the date of its passage, and that the voter’s signature corresponds to the actual ordinance being challenged. To excuse compliance with these requirements would frustrate the statute’s purposes. Because Petition 3 failed to substantially comply with the requirements of SDCL 7-18A-17, the circuit court properly denied the Appellants’ petition for writ of mandamus [South Dakota Supreme Court, ruling, Thompson v. Lynde, 2018.09.26, p. 5].
I sympathize with the Deuel County petitioners: their auditor threw out 303 apparently valid or at least unchallenged signatures from local voters who lost their opportunity to vote on an important local issue. But the auditor did not disenfranchise those voters; the petitioners did, by committing two fatal errors that broke the law and invalidated their petitions. And no one should get on the ballot by breaking the law.
Perhaps, in his down time from his Senate gig, Mr. Heidelberger should develop a petitioners school. Seems to be a need among in-state and out-of-staters and we all know, “Money is fungible, no matter where it originates.” (just kidding … perhaps the biggest enemy is SD is out of state money. It’s the go to villain in researching most new ideas.)
We’ll certainly need a petitioners’ school to help citizens satisfy all the bureaucracy Mark Mickelson threw at them this year… at least until I can get all that unnecessary regulation repealed!
“And no one should get on the ballot by breaking the law.”
Unless you’re Dan Lederman and/or SDGOP. IOW, suitably corrupt/crooked.