Sally Jo Sorensen of Bluestem Prairie serves the public by posting the responses of both recent Wisconsin immigrant Logan Manhart and Secretary of State Steve Barnett to candidate Steven McCleerey and the South Dakota Democratic Party’s lawsuit charging that Manhart’s too-recent voting residency in Wisconsin disqualifies him from running for Legislature this year.
The most important thing to note in these responses is that neither Manhart nor Secretary Barnett deny that Manhart’s voting in Wisconsin in April 2021 means he fails to meet the South Dakota Constitution’s requirement (Article 3 Section 3) that candidates for Legislature have resided in South Dakota for two years prior to the election in which they appear on the ballot. Manhart’s response is pure delay; Barnett’s response is pure technical distraction.
To get his Wisconsin cheese out of the wind, Manhart turns to GOP monster-lawyer Sara Frankenstein, and all she can come up with so far is delay. Plaintiffs filed their complaint May 16. Manhart was supposed to respond by last Thursday, May 26. Frankenstein asks the court for three more weeks, until June 16, to “accommodate his attorney’s scheduled vacation”:
Manhart recently hired undersigned counsel, whose schedule prohibits working on the matter until she returns from vacation. There is no reason to expedite this matter before the primary election as Manhart is not appearing on the primary ballot. This matter only involves Manhart’s appearance on the November general election ballot. Therefore, there is no prejudice to any of the parties in granting an extension to serve a Response to the Application for Writ of Prohibition [Sara Frankenstein, Logan Manhart’s Motion for Extension of Time to Serve Response to Application for Writ of Prohibition, McCleerey and SDDP v. State Canvassing Board and Barnett #32CIV22-000092, filed 2022.05.22].
Of course, if Manhart weren’t guilty of lying about his residency, it wouldn’t take 31 or 10 days to compose a response. But when the facts aren’t on your side—when you claim to have resided in South Dakota since November 2020 but vote in Wisconsin in April 2021 and thus have to choose between charges of petition fraud in South Dakota and voter fraud in Wisconsin—then, yeah, you might need more time to choose your legal smokescreen.
Republican Secretary of State Steve Barnett plays his part in the Republican smoke machine with his own obfuscatory response. Barnett claims that the court cannot issue a writ of prohibition to boot Manhart from the ballot because the plaintiffs can instead file an election contest under SDCL Chapter 12-22. Just like Governor Noem’s lackeys in the original challenge to Amendment A, Secretary Barnett appears not to understand what an election contest is… and this lack of understanding is particularly disturbing, given that it comes from South Dakota’s chief election official, the one man in South Dakota who should know more about elections and their legal and technical details than anyone else.
An election contest challenges the election process itself, the conduct of voting, and the counting of votes. As the South Dakota Supreme Court explained in a 2001 election contest, “Contestants must show not only voting irregularities, but also show those irregularities to be so egregious that the will of the voters was suppressed.”
There has been no voting in the District 1 House race. Even if Manhart and his ticketmate Rep. Tamara St. John had drawn a primary challenger and District 1 were going to the polls next Tuesday to pick two Republican nominees, or even if McCleerey had foolishly waited until after the general election to file his lawsuit, the challenge to Manhart’s residency and eligibility would not require demonstrating that Manhart’s brownshirts stuffed ballot boxes or that the Roberts, Day, Marshall, and Brown county auditors had miscounted ballots. McCleerey is not contesting the casting or counting of ballots; he is contesting a candidate’s qualification to appear on a ballot. That is not an election contest; that is a question of whether the candidate and the Secretary of State are following basic requirements of the South Dakota Constitution.
Secretary Barnett plies this false argument in an apparent attempt to box out the challenge to Manhart’s candidacy. Barnett claims that McCleerey is contesting a primary election (even though there wasn’t one) and that SDCL 12-22-29 requires that contests to primary elections be filed within ten days after nomination for office. Manhart and St. John automatically became nominees back in early April when Barnett certified that no other Republican candidates had filed petitions for District 1 House, So Barnett’s logic would lead us to conclude that it is too late for McCleerey to file the primary contest that Barnett says McCleerey ought to file.
First, it is absurd to say that if evidence of illegal and disqualifying activity (in this case, Manhart’s false oath on his nominating petition comes to light more than ten days after a primary or a nomination but still well before the printing and casting of general election ballots, nobody can take action to remove that illegal candidate from the ballot.
Second, Barnett’s argument about primary contest timeframe applies only to actual primary elections. Barnett cites SDCL 12-22-29 to invoke the ten-day timeframe, but he ignores the conditions that set that clock ticking:
Any candidate for nomination to any elective office, or for election to any party position, whose name appears on the official primary election ballot of any political party may contest the primary election as to the office or position for which he was a candidate for nomination or election, by filing with the clerk of the circuit court for the county in which his nominating petition was filed, a complaint in writing within ten days after the returns have been canvassed by the county canvassing board or boards, setting forth the grounds of his contest, which complaint shall be verified by the complainant. The complainant shall give security for all costs. Authority and jurisdiction are hereby vested in the circuit court to hear and determine such contests [emphasis mine; SDCL 12-22-29].
This statute says the complaint for a primary contest goes to the county canvassing board. The statute assumes there are votes to count and that they are counted at the county level. The statute says nothing about candidates who have no primary challengers, do not appear on a primary ballot, and are automatically certified as nominees in the Secretary of State’s office in Pierre. Barnett can’t wish this lawsuit away as an untimely primary contest, because a plain reading of law says this is not a primary contest, or an election contest of any sort. There was no election to contest.
More importantly, neither Manhart nor Barnett nor anyone else has contested the central facts of this case: to qualify for the 2022 ballot, Manhart claimed he has resided in South Dakota since November 2020, but he used his Wisconsin residency to vote in the Wisconsin election in April 2021. Either Manhart broke the law to get on the South Dakota District 1 House ballot, or he broke the law to vote in Wisconsin in 2021. Manhart’s bigwig GOP attorney has a duty to her client to obscure those condemnatory facts, but I’d like to think the Secretary of State could at least address those facts and his constitutional duty to protect the integrity of the ballot from illegal candidates.