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.