Last updated on 2022-01-16
Representative Jon Hansen (R-25/Dell Rapids) finally filled two of his hoghouse bills dealing with ballot question petitions yesterday in House State Affairs. One of them, House Bill 1093, creates another venue for challenging ballot question petitions… but also creates another tiger trap that corporate lawyers like Hansen could use to crush grassroots petitioners.
Rep. Hansen offered no actionable text when he filed HB 1093 on January 25. He stepped into House State Affairs yesterday with five fun-filled sections changing the rules for ballot question petitions. Let’s step through Hansen’s hoghouse, as printed in Wednesday’s committee minutes, section by section:
Section 1. That § 2-1-14 be amended to read:
2-1-14. All signatures secured in a manner contrary to the provisions of this chapter may not be counted, including signatures gathered by a petition circulator who provides false information to the secretary of state, solicits or gathers signatures in violation of this chapter, or is compensated in a manner inconsistent with the payment listed on the petition form or in violation of § 12-13-28.
This section should go without saying. Statute already says circulators must provide information to the Secretary of State, and we would expect that circulators would follow the law. The last addition, about circulators receiving illegal pay, awkwardly professes to include Chapter 12-13 in Chapter 2-1, which ought at least be revised for clarity.
But in spirit, I agree with Section 1: signatures gathered illegally should not be counted.
Section 2. That § 2-1-15 be amended to read:
2-1-15. Upon the receiving of any initiative petition, referred law petition, or initiated constitutional amendment petition, the secretary of state shall examine the petition. No signature of a person may be counted by the secretary of state unless the person is a registered voter in the county indicated on the signature line. No signature of a person may be counted if the information required on the petition form is not accurate or complete.
One would assume that completeness includes accuracy. But evidently, we need to explicitly state that the blanks on a petition must be not just filled in but filled in with correct information. O.K., fine, Attorney Hansen.
Section 3. That chapter 2-1 be amended by adding a NEW SECTION to read:
At any time after a statewide petition for an initiated amendment to the Constitution, initiated measure, or referred law has been filed, any interested person may challenge the petition by submitting a sworn affidavit to the attorney general that includes each specific deficiency or violation that may include that the petition circulator:
(1) Submitted false or incomplete testimony to secretary of state;
(2) Does not live at the address listed on the petition;
(3) Listed a residence address in this state but is not a resident of this state;
(4) Solicited or secured signatures in violation of this chapter; or
(5) Is compensated in a manner inconsistent with the payment listed on the petition form or in violation of § 12-13-28.Every challenge under this section by the same interested person shall be included in the same sworn affidavit.
If an affidavit contains sufficiently specific and reliable information to show that probable cause exists for an investigation, the attorney general shall conduct an investigation of the alleged deficiency or violation. If the attorney general determines a petition contains a deficiency or a petition circulator committed a violation, all signatures collected by that petition circulator may not be counted. The attorney general shall notify the secretary of state of any determination under this section.
The attorney general’s determination under this section may be appealed to the circuit court of Hughes County. A person who does not challenge a petition under this section may bring a challenge under § 2-1-18.
Now things get interesting. We currently have two ways to challenge a ballot question petition: through the Secretary of State within 30 days of petition validation, or through circuit court sometime before ballots are printed. The Secretary of State only accepts challenges on facial completeness, not anything that requires looking past the petition itself and the signers voter registration record. Anything else has to go to court.
Attorney Hansen wants a third way, a step before we go to court. Section 3 offers challengers a chance to lodge their complaints about circulator shenanigans with the Attorney General before taking such complaints to court (under SDCL 2-1-18). The Attorney General would do the investigative work that the Secretary of State, in his ministerial duty, cannot. The Attorney General would then determine if a circulator’s petition sheets ought to be tossed.
On face, I like that. I’ve complained that challengers ought not have to lawyer up and go to court to point out obvious violations of petition law and have bum signatures thrown out. Allowing the Attorney General to investigate claims of petition violations could improve the integrity of the ballot.
But then comes Section 4 to crush my eagerness for Hansen’s hoghouse:
Section 4. That § 2-1-18 be amended to read:
2-1-18. Nothing in §§ 2-1-15 to 2-1-18, inclusive, prohibits any interested person who has researched the signatures contained on a validated petition from challenging in circuit court the validity of any signature, the veracity of the petition circulator’s attestation, or any other information required on a petition by statute or administrative rule, including any deficiency that is prohibited from challenge under § 2-1-17.1. The results of the process of signature verification by the Office of the Secretary of State under chapter 2-1 shall be presumed valid as applied to all signatures for purposes of considering any additional ground for disqualifying petition signatures, including any ground listed in subdivisions 2-1-17.1(1) to 2-1-17.1(4), inclusive, and cumulating total valid signatures to determine the results of an appeal under § 2-1-17.1. The summons and complaint for a challenge under this section shall be served on each petition sponsor as a party defending the validated petition being challenged. Any appearance by the attorney general at a challenge under this section shall be limited to the process of signature verification by the Office of the Secretary of State under chapter 2-1. The petition sponsor shall pay all reasonable attorney’s fees generated by the attorney general for any appearance under this section.
If a challenge does go to court, the petition sponsor automatically has to pay the Attorney General to work on the case.
First, if I file a ballot question petition, and some corporate fascist challenges my petition in court, there’s no way I will pay one red cent to be represented by South Dakota’s unqualified Attorney General Jason Ravnsborg. I’ll hire my own lawyer. I write my own briefs. I’ll eat my hat and tapdance on the street before I spend money on Jason Ravnsborg’s legal malpractice.
But independent of current incompetents in office, Section 4 opens the door for challengers to scare grassroots activists away from petitioning entirely. Even if we gather signatures in rock-solid compliance with the law, with a full 100% cushion over the minimum signature threshold, Jon Hansen just needs one rich industry (Big Pharma, the Koch Brothers, the payday lenders) to say, “Break ’em,” and hand him a six-figure check to force us activists to start writing the Attorney General checks. The more they throw into the case, the more hours the Attorney General will have to bill us. Under the status quo, ballot question sponsors could choose to defend themselves in court, perhaps even enlist a lawyer who’s willing to donate the hours necessary to point out why the challengers are wrong. Under Hansen’s bill, sponsors have to write tens of thousands of dollars into their budget that will be spent completely beyond their control. Most volunteer petitions can’t afford that kind of expense, and they’ll stay out of petitioning completely.
Section 5. That § 2-1-15 be amended to read:
2-1-15. Upon the receiving of any initiative petition, referred law petition, or initiated constitutional amendment petition, the secretary of state shall examine the petition. Any signatures gathered by a petition circulator determined to be deficient or in violation of this chapter under section 3 of this Act shall be removed prior to any process for signature verification under § 2-1-16. No signature of a person may be counted by the secretary of state unless the person is a registered voter in the county indicated on the signature line. No signature of a person may be counted if the information required on the petition form is not complete.”
Section 5 is a bit of a puzzler. It seems to impose upon the Secretary of State exactly the investigative burden that the SOS does not assume now and which Section 3 seemed to direct to the Attorney General.
I could roll with most of this bill, but making citizens pay for the Attorney General’s response to court challenges is a budget-buster and a dealbreaker.
Hansen’s hoghouse isn’t officially in HB 1093 yet. House State Affairs deferred the bill to another day. That subsequent hearing is not yet scheduled.
The premise of this bill seems to be that under God the people rule until they want to bring something to a vote; then, all bets are off.
Strange indeed! As I read the proposal, the AG is defending/representing the findings of the Secretary of State, not the petition or actions of the petitioners.
I can think of no other provision in civil law that would require private individuals to pay the attorneys fees, or even court costs, of one State agency defending the actions of another government agency, absent a civil suit by that private plaintiff against the agency.
And even in the later case, a court typically is authorized by statute only to require the loser to pay the winner’s “costs” as defined by statute, not attorneys fees. Thus, the attorney section of HB 1093 seems unprecedented.
I also wonder if the Constitution would permit this type of non-compensated “taking” by the State of an individual’s property. While the entire public benefits from a decision upholding the Secretary of State, any “taking” of property on that basis requires just compensation under the 5th Amendment (“. . . nor shall private property be taken for public use, without just compensation”).
It’s not surprising that something like this comes up, given the SDGOP’s clearly demonstrated antipathy toward a functioning democracy.
BCB, good analysis, especially the point that the AG is defending the SOS, not the sponsors. We need more legislators like you and fewer like Jon Hansen and the folks on House State Affairs who approved this amendment. SDCL 2-1-18 explicitly restricts the AG from saying anything in defense of the sponsors and limits his work to the SOS process. Sponsors still have to hire their own counsel to make any other points about their circulation process, yet Hansen would have us pay for the AG on top of our own counsel? Nuts to that!
BCB, in your opinion is the bill constitutional? It sounds iffy.
Citizens should not have to pay their public official to do his job beyond the base salary, right? Otherwise it’s like a private enterprise arrangement. Am I on the right track?
Debbo, doubtful in my view. Although citizens in general can be taxed for the cost of a public servant, I can’t see where the Constitution permits the state to single out one citizen (or a group of citizens) who might benefit from the AG’s public litigation efforts and make that citizen (or group) pay attorneys fees to the AG.
I like that tack, BCB. If HB 1093 posits that the AG really is representing the petitioners and not just the action taken by the Secretary of State (and look at past challenges: they are always filed against the SOS, not against the petitioners themselves; the petitioners aren’t technically plaintiffs), then we can argue that the AG is not representing solely the sponsors or the ballot question committee. The AG is representing at least the thousands of voters who signed the petition, if not the hundreds of thousands of South Dakotans who have the chance to vote on it and whose vote will be taken away if the challenge succeeds.
I note an older thread w Krebs photo and $600K court ordered atty fees/costs. Is this proposal a reaction or related? Remember Republican cries of tort reform? Victims awards limited by the legislature.