One thing our new Secretary of State Steve Barnett can get to work on on his first day in that lovely office is fixing the erroneous information posted by his predecessor on the new petition circulator data requirements.
On the way out the door, Team Krebs (and someone should drop by the office tomorrow and see how much of that pretty good team Barnett has kept) updated its guidance on “How to Submit and Circulate a 2020 Statewide Initiated Measure or Constitutional Amendment Petition.” That guidance incorrectly states that ballot question sponsors must submit proof of circulator residency, newly required by 2018 House Bill 1196 (now SDCL 2-1-1.4), “before circulation may begin.” SOS Krebs made this same error on the “Proof of Circulator Residency” form, telling sponsors the information is to be filed “PRIOR to petition circulation.”
Petition sponsors will recognize that such a requirement is practically impossible. When I took out two referendum petitions in 2015, I had no idea who my circulators would be, and I gained new circulators throughout the petition drive. Requiring sponsors to collect sworn statements, residential history, voter registration cards, driver licenses, utility bills, library cards, hunting licenses, tuition data, and other information from every circulator before collecting a single signature on the entire petition will (1) significantly delay the launch of every petition drive and (b) prohibit sponsors from recruiting new circulators once the petition drive starts.
2018 HB 1196 was bad, but not that bad. The language added to statute clearly calls for ballot question sponsors to submit proof of circulator residency at the end of the petition drive, with the completed, signed petition. Let’s review the very statutes that the Secretary’s guidance cites:
SDCL 2-1-1.4 says “A sworn affidavit filed with the secretary of state pursuant to § 2-1-1.1, 2-1-1.2, or 2-1-3.1 shall include information attesting to residency as defined in § 12-1-4 of each petition circulator.” This statute refers to the three separate statutes on petitions for initiated amendments, initiated laws, and referred laws. Each of those statutes list five items that sponsors must submit to the Secretary of State before circulation; the “sworn affidavit” is not one of them:
[SDCL 2-1-1.1]: The petition as it is to be circulated for an initiated amendment to the Constitution shall be filed with the secretary of state prior to circulation for signatures and shall:
- Contain the full text of the initiated amendment;
- Contain the date of the general election at which the initiated amendment is to be submitted;
- Contain the title and explanation as prepared by the attorney general;
- Be accompanied by a notarized affidavit form signed by each person who is a petition sponsor that includes the name and address of each petition sponsor; and
- Be accompanied by a statement of organization as provided in § 12-27-6.
[SDCL 2-1-1.2] The petition as it is to be circulated for an initiated measure shall be filed with the secretary of state prior to circulation for signatures and shall:
- Contain the full text of the initiated measure;
- Contain the date of the general election at which the initiated measure is to be submitted;
- Contain the title and explanation as prepared by the attorney general;
- Be accompanied by a notarized affidavit form signed by each person who is a petition sponsor that includes the name and address of each petition sponsor; and
- Be accompanied by a statement of organization as provided in § 12-27-6.
[SDCL 2-1-3.1] The petition as it is to be circulated for a referred law shall be filed with the secretary of state prior to circulation for signatures and shall:
- Contain the title of the referred law;
- Contain the effective date of the referred law;
- Contain the date of the general election at which the referred law is to be submitted;
- Be accompanied by a notarized form that includes the names and addresses of the petition sponsors; and
- Be accompanied by a statement of organization as provided in § 12-27-6.
Each statute refers to the “sworn affidavit” in a later paragraph, as the document submitted to the Secretary of State at the end of the petition drive:
[SDCL 2-1-1.1] The initiated amendment petition shall be filed with the secretary of state at least one year before the next general election. A sworn affidavit, signed by at least two-thirds of the petition sponsors, containing information required for each petition circulator as required under § 2-1-1.4 and stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state.
[SDCL 2-1-1.2] The initiated measure petition shall be filed with the secretary of state at least one year before the next general election. A sworn affidavit, signed by at least two-thirds of the petition sponsors, containing information required for each petition circulator as required under § 2-1-1.4 and stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state .
[SDCL 2-1-3.1] The [referred law] petition shall be filed with the secretary of state within ninety days after the adjournment of the Legislature which passed the referred law. A sworn affidavit, signed by at least two-thirds of the petition sponsors, containing information required for each petition circulator as required under § 2-1-1.4 and stating that the documents filed constitute the entire petition and to the best of the knowledge of the sponsors contains a sufficient number of signatures shall also be filed with the secretary of state.
These laws are clear about what ballot question sponsors must submit before they circulate petitions and what they must submit after they circulate. The “sworn affidavit,” now with proof of circulator residency, is required after sponsors circulate, when they submit the petitions with all of its tens of thousands of signatures to the Secretary of State.
The Board of Elections, which the Secretary of State chairs, recognized the law’s clear direction last June when it approved the addition of the following bolded language to ARSD 05:02:08:00, on guidelines for acceptance of petitions:
When a petition is presented for filing, the person or governing board authorized to accept the petition for filing shall determine if it meets the following requirements for acceptance:
…(5a) If a petition is for a ballot question to be voted on statewide, the sponsor(s) must submit the affidavit of completed petition along with the information required for each petition circulator when the petition sheets are submitted to the secretary of state;… [ARSD 05:02:08:00, as amended 2018.06.18 and effective 2018.07.29].
The new guidance on ballot measure petitions thus conflicts with both law and administrative rule.
In response to questions from at least one potential petitioner about this misinterpretation of state law, Secretary Krebs’s office asterisked the “Proof of Circulator Residency” requirement and stuck this note under “Miscellaneous” on page 4:
*Proof of Circulator Residency- Since this is a new statute (2-1-1.4) we don’t have a court case or AG opinion to help us interpret the statute. What we can suggest is that we believe a sponsor should provide all the necessary circulator information, that they have, prior to circulation. But if no circulators have been hired by that time, then the sponsor would have no information available to provide. If circulators are hired after the petition has been submitted for our approval or after we approve the petition for circulation, then we would encourage the sponsor to submit the circulator information as soon as possible. We cannot however, offer an opinion as to whether a court would agree with our suggestions nor can we, offer an opinion as to if a sponsor follows our advice that their petition could withstand a legal challenge [South Dakota Secretary of State,”How to Submit and Circulate a 2020 Statewide Initiated Measure or Constitutional Amendment Petition,” updated 2019.01.04].
In minor news, this footnote fails to acknowledge that not all circulators are hired. Some are volunteers. For clarity, the guidance should replace the term hired with recruited.
In major news, this footnote still gets the law wrong. We need no Attorney General’s opinion or court case to tell us that the law says nothing about submitting circulator information “as soon as possible.” The law says exactly when circulator information should be submitted: with the sponsor affidavit and complete, signed petition at the end of the petition drive. ARSD 05:02:08:00 says so, too.
In double major news, this footnote is thus giving petition sponsors advice that could nuke their petitions. Law and rule say sponsors have to submit all the necessary papers—every signature sheet we want counted, the sworn affidavit, documentation of all circulators—at the same time. If sponsors start submitting circulator documents early, some at the start, some in the middle of the drive as they recruit, the Secretary or a ballot question opponent could challenge our final submission: “Not all of the documents are together in one complete submission; thus, ARSD 05:02:08:00 does not authorize the Secretary to accept the petition.” The January 4 guidance recommends action that breaks law and rule and increases the chance that a petition will be rejected.
And in—what am I on, triple major? J.D.? Ph.D PoliSci?—arguably the biggest news, the Secretary of State’s guidance is not just wrong but is declining to state definitely what citizens must do to comply with the law. It’s as if I met a Highway Patrol cruiser out on a poorly signed highway and asked, “Officer! What’s the speed limit out here?” and the HP said, “Well, I’d only go 45, but that’s just my suggestion; I can’t offer an opinion on what speed will get you a ticket.” When citizens seek to participate in the democratic process, whether by voting, campaigning, donating, or petitioning, the Secretary of State should be able to tell citizens exactly what the law requires and when the law requires it.
Secretary Barnett, get on that. Fix the guidance, fix the proof of residency form, and tell ballot question sponsors what the law says: sponsors submit circulator residency documentation with their completed petition, AFTER circulation, at the end of the petition drive.
Terminology-wise,refer to law as “statute”, because “law” means all of it; statute, ad rule, precedent,what have you. BTW how many Barnets hold official offices?
God, how can any reasonable person argue otherwise? Arghh…