At least 22 candidates for Legislature appear to be out of compliance with South Dakota campaign finance law…and it appears their failure of compliance stems from getting the wrong advice from the Secretary of State.
South Dakota Codified Law 12-27-22 requires that “All candidates running for a legislative or county office with a recognized political party shall file a pre-primary report if there is any primary race for that particular office in the legislative district or county….” Prior to the 2020 election cycle, Legislative candidates who themselves faced no primary didn’t have to disclose any donors until the pre-general deadline in October. Thus, in 2016, when Brooks Briscoe and Nikki Bootz ran for District 3 House and I ran for District 3 Senate with no Democratic primary opponents, we did not have to file pre-primary reports. That didn’t sit well with Drew Dennert, who ran as a Republican for District 3 House. Dennert had to go through a primary with Dan Kaiser and Todd Kolden to win one of the two House nominations. Thus, Dennert had to report his donors and finances in May, while his Democratic opponents got to keep their donors and finances secret until May.
In the spirit of openness, Representative Dennert brought 2019 House Bill 1029 to require non-primaried party candidates to file pre-primary reports when there’s a primary among their opponents in another party in their district. Dennert says he sat down with the Secretary of State’s office (newly reined in January 2019 by Steve Barnett) to work out the statutory language I quote above to make sure it would do exactly what he wanted. That language passed through the House with little opposition, and it sailed through the Senate with nary a nay.
The Secretary of State enforced that law in 2020, and candidates complied without difficulty. A number of Democratic Legislative candidates who had no primary themselves but whose Republican neighbors had primaries in 2020 filed pre-primary reports: see, for instance, in 2020 Senate races, Nancy Kirstein, Jeff Hayward, Erin Royer, and Dan Andersson. Rep. Dennert checked the 2020 reports himself, to make sure his new law was working, and he was satisfied that it was.
But this year, 22 Legislative candidates—20 Democrats and 2 Libertarians—who do not face primaries but whose Republican counterparts do do not have pre-primary campaign finance reports posted to the Secretary of State’s campaign finance reporting website:
Senate:
- Donn Larson (Democratic-16)
- Darren Freidel (Libertarian-33)
House:
- Gary Leighton (D-2)
- Emily Meier (D-3)
- Travis Paulson (D-4)
- Lisa Johnsen (D-7)
- Mary Perpich (D-7)
- Nick Winkler (D-9)
- Kristin Hayward (D-12)
- Erin Royer (D-12)
- Mike Huber (D-14)
- Wendy Mamer (D-14)
- Matt Ness (D-16)
- Sean Natchke (L-29)
- Bret Swanson (D-30)
- Jonathan M. Old Horse (D-32)
- Christine Stephenson (D-32)
- Vince Vidal (D-33)
- Darla Drew (D-34)
- Jay Schultz (D-34)
- Pat Cromwell (D-35)
- David Hubbard (D-35)
I do not include independent District 16 Senate candidate Brian Burge, on this list because Dennert’s amendment of SDCL 12-27-22 only applies to candidates of recognized political parties. The same goes for Susan Wismer in the District 1 Senate race, in which the Republicans have a primary: she originally filed as a Democrat, but that petition got booted, so she refiled as an independent and doesn’t have to file a pre-primary report. Likewise for independent Lora Hubbel in the District 13 House race: while Venhuizen, Thomason, Peterson, and Baybridge slug out the Republican primary, Hubbel can hide her two-cents’ worth of donors until October.
But I do include the two Libertarians with the twenty Democratic Legislative candidates above because the Libertarians convened early, in April, and nominated their Legislative candidates four weeks before the pre-primary reporting deadline. If the Libertarians had waited until summer to hold their convention, their Legislative candidates in GOP-primaried districts 29 and 33 would not have to file pre-primary reports.
But apparently, despite helping Dennert write this law in 2019 and enforcing it in 2020, the Secretary of State has decided none of the above candidates have to follow this law. Multiple candidates on this list have told me that they have been advised by the Secretary of State’s office, as well as by county auditors, that only candidates on the primary ballot have to file pre-primary campaign finance reports.
Failing to timely file a campaign finance report is a Class 2 misdemeanor. Such failure can also result in a civil penalty of $200 (SDCL 12-27-29.1) and decertification as a candidate (SDCL 12-27-29.3). But before we drop the hammer on any candidate, the Secretary of State has to provide candidates who are out of compliance a grace period of up to seven days to cure the violation (SDCL 12-27-51). And given that this non-compliance has arisen from the Secretary’s own incorrect advice, no candidate on this list should be penalized. The Secretary should open up the campaign finance reporting system, activate the green button for pre-primary filings for all 22 of these candidates, and accept their reports for at least a week with no penalty.
Along with other recent bungled bunglings, the Secretary of State of SD needs to be taken to the verbal woodshed by the power brokers behind the GOP puppet show. Elections and the show of support for DEMOCRACY are the real background of public service.
Make sure I got this right…you are blaming the SOS for 22 candidates not being able to follow election law?
My District 35 playas, vote Pat Cromwell for House! Yeah, baby! She’s on fiya!
On a more serious note, serious like choking; it cannot get much worse than the utter failure of our SOS to be competent and honest. We’re screwed.
Hearsay about what the candidates claim they were told. The law is the law and the hammer should indeed be dropped on these scofflaw fellows and go “bonk bonk on the head,” like my good friend Mr. Newland would say.
If some fellow claiming to be a policeman told you it was ok to drive 100 mph while carrying 100 sacks of the demon weed in your trunk and another policeman picked you up, do you think you could get off saying “oh it’s ok?”
The law is the law no matter what anybody says.
Well, Grudz is half right. The law is the law if you’re a Democrat.
If you’re a Democrat and you do your due diligence and ask the people in charge what you need to do to comply with the campaign finance laws, and they say, “Ah, fagitaboutit,” I suspect you take their advice. After all, they’re all Republicans, and they wouldn’t purposely lie about that, or be simply incompetent, would they, Grudz? After all, we’ve all seen that if you’re a Republican in South Dakota, you can kill someone and get away with it. Ask your Attorney General for how that happens. It would be no surprise if Mr. Manhart, the Republican petition fraud crook, gets off, too.
Mr. Pay should also agree with me when I said we need to hold some fellows accountable for some other lackings. grudznick is not afraid to call out even fine young Conservatives with Common Sense, like Mr. Barnett, when they need to be called out.
DR, yes. I was ready to drop an unwelcome hammer on candidates for screwing up, but it appears that the SOS was telling these candidates they did not need to file pre-primary reports. Even if they tried, when they accessed the CFR website, they were not able to access the pre-primary report.
I gladly hold candidates accountable for following the law. But to follow the law, candidates, many of whom are running for the first time and do not have experience with or lawyers to help figure out campaign finance law, contact their county auditors and the Secretary of State for guidance on following the law. The candidates listed above appear to have followed the guidance given by the SOS and the SOS-trained auditors, and that guidance in 2022 was the opposite of the guidance given in 2020, despite the fact that the relevant law had not changed.
If the Secretary of State had not been giving the wrong advice—if the SOS and county auditors had not given any advice at all, and if candidates’ only option were to read the statute itself, I find it hard to believe that 22 candidates would came to the same erroneous conclusion. The thing here is that not one of the candidates in this situation—no primary themselves, but a primary happening in the opposing party—filed a pre-primary report. That sort of consistent non-compliance can only result from coordination, and in this case, the coordination appears to have come from consistently wrong advice from election officials.