Sheriff Kevin Thom and South Dakota Highway Patrol Colonel Rick Miller may be barking up the wrong legal tree in their taxpayer-funded court challenge to Amendment A, South Dakota’s freshly approved constitutionalization of marijuana. They have filed an “election contest” when there appears to be nothing about the election itself to contest.
SDCL 12-22-1 defines “contest” as “a legal proceeding, other than a recount, instituted to challenge the determination of any election….” The “determination” of an election does not have to do with the content of a ballot question; it has to do with the conduct of the election, the counting of votes, and the official declaration of the results.
SDCL 12-22-5 makes clear that grounds for an election contest cannot exist until a determination has been made. Plaintiffs cannot commence a contest until after the official canvass of the returns. The contest chapter, SDCL 12-22, thus envisions that election contests will pivot on arguments about the voting process and the certified results of that process.
In a 2001 opinion on an election contest over two referred municipal questions in Watertown, the South Dakota Supreme Court supports this interpretation of contests as focusing on the voting and counting process:
The purpose of an election contest is to challenge “the election process itself.” Larson, 262 NW2d at 753, n.1. The basic question in an election contest is whether the election, despite irregularities, resulted in a free and fair expression of the will of the voters. Id. (citing Green v. Ind. Consol. School Dist. No. 1, 89 NW2d 12 (Minn 1958)). Therefore, Contestants must show not only voting irregularities, but also show those irregularities to be so egregious that the will of the voters was suppressed [South Dakota Supreme Court, opinion, “In the Matter of the Election Contest as to Watertown Special Referendum Election of October 26, 1999 Pertaining to Referred Ballot Issues No. 1 And 2,” 2001.05.23].
Plaintiffs Thom and Miller are not alleging any voting irregularities. They are not alleging that anyone submitted or counted bogus ballots. They are not saying that dope fiends stood outside the polls scaring away old fuddy-duddies who might vote against Amendment A. They are not saying election officials improperly distributed or withheld ballots or erred in the counting thereof. The complaint cites no violation of election law. Voters voted in an orderly election and expressed their will clearly (Let’s blaze up, dude, and pay taxes on it!) There thus is nothing to contest about this election process.
The plaintiffs argue not against the election process but against Amendment A itself, against the content of the amendment (too many subjects) and the origin of the amendment (an initiative petition instead of a constitutional convention). Their arguments have nothing to do with how any ballot was distributed, marked, submitted, or counted. Their arguments exist independently of the conduct of the election. The legal grounds they cite all existed prior to the election, in constitutional provisions not specific or relevant to the election contest chapter.
Thom and Miller are thus not really contesting the election. They have misfiled a constitutional challenge to Amendment A itself. Their complaint is invalid as filed under Chapter 12-22, since it alleges no voting irregularities that suppressed the expression of the will of the voters. A judge can throw out this bogus complaint without touching the actual constitutional questions, because the plaintiffs raise them in the wrong form.