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SB 46: Make Violations of Petition Circulator’s Oath a Class 6 Felony

We have our first Legislative attempt to further hamstring initiative and referendum in the 2023 Session… and I can’t really oppose it.

Senate Bill 46, requested by the Office of the Attorney General and sponsored by the all-Republican Senate Judiciary Committee, would create a new crime, “petition circulation perjury”, and punish that crime as a Class 6 felony.

SB 46 appears to apply to circulating petitions for ballot questions and candidates. Section 2 reads as follows:

Any person who, having taken an oath attesting to having personally circulated any petition to initiate an amendment to the Constitution, initiated measure, referred law, or to nominate any candidate for any political office, states, intentionally or contrary to the oath, any material matter that the person knows to be false, is guilty of perjury pursuant to subdivision 22-29-5(3) [2023 Senate Bill 46, original form, introduced 2023.01.06].

I assume this clause relies on a lot of context, because the words alone appear to say that if a circulator ever lies about anything, boom! that’s perjury. The qualifier “intentionally or contrary to the oath” seems to break the scope of this law away from the oath on the petition to apply also to any intentional statement of falsehood. We can hope that the lawyers or the Supreme Court will tell us that “any material matter” means in this context “any matter material to an inquiry into the faithful execution of the oath on the petition circulated.”

Section 2 applies this new form of perjury to ballot question petitions and candidate petitions equally, which is nice to see, given legislators’ focus on quashing initiative and referendum petitions and past failure to equally apply petition restrictions to the folks who circulate the nominating petitions that place those legislators on the ballot. One could even argue that legislators are going easy on ballot question petitioners compared to their own nominating petitioners: Section 1 applies petition circulation perjury only to the portion of the circulator’s oath in which ballot question petitioners attest that they personally circulated the petition. Section 1 says that lying about the other elements of the circulators’ oath—I collected every signature on this sheet, I live in South Dakota, I asked all of the signers if they are registered South Dakota voters, and I didn’t break any laws while circulating—remain only Class 1 misdemeanor infractions. (I’m not sure how statute can distinguish circulating the petition from collecting the signatures on the petition—in my mind, circulating includes collecting, but current statute evidently sees a distinction.) SB 46 doesn’t mention the specifics of the circulator oath on nominating petitions, which is shorter and less specific than the circulator oath specified for initiatives, referenda, and amendments. So while SB 46 only felonizes violations of one portion of the ballot question petition circulator’s oath, it felonizes violations of any part of the candidate petition circulator’s oath.

But we know and Senate Judiciary knows that circulating a candidate petition to get a several dozen signatures to run for local office or Legislature or a couple thousands signatures to run for statewide office is not as hard as collecting tens of thousands of signatures to place policy on the ballot. With the higher signature counts and all the extra paperwork and bureaucracy that Republicans have piled onto the initiative and referendum process but not onto the candidate filing process, successful ballot question petition drives require enormous expense, more circulators, and usually hired circulators. Telling potential circulators that making false statements related to the petition can land them in prison for perjury is one more way to scare off potential circulators.

Of course, Republicans know that this particular hindrance to circulating petitions is one that conscientious direct democracy advocates can’t really oppose. Senate Bill 46 talks about oaths, and oaths matter. Violating an oath should be perjury.

But one could argue that it already is. Annette Bosworth got busted for perjury for swearing a false circulator’s oath (the Supreme Court reversed the perjury convictions due to weaknesses in the case, but the Court upheld convictions for filing false documents). So was Clayton Walker. Chad Haber was charged with perjury for the same crime and escaped felony punishment with a plea bargain. If we can already charge petitioners with perjury for violating the circulator’s oath, is Senate Bill 46 really creating a new crime, and do we really need it?


  1. Mark Anderson 2023-01-09 08:11

    Heck, George Santos would be a great Circulator for the Republican Party. He’s as honest as the day is long. Gosh, did I just commit perjury?

  2. Donald Pay 2023-01-09 10:06

    As you delve into this bill, as Cory did, it seems like a good idea, but it needs some tightening up.

    I’m not sure a felony is needed, as much as better ways to show prospective circulators how to collect signatures, and what not to do.
    Most mistakes are made by novice circulators, and they are mostly the result of ignorance, not malice. Few people want to violate the law or the oath. They just haven’t been properly trained in how to collect signatures.

    So my suggestion is that the SOS office make a training video that could be accessed on-line about how to and how not to circulate petitions. Provide a short test at the end and circulators who pass the test get a badge sent to them.

  3. 96Tears 2023-01-09 11:09

    Great idea, Don! I nominate Logan Manhart to star in the video as a Secretary of State employee with real life and recent experience filing falsified petitions in Legislative District 1. It may be the only topic as the recently hired state elections director that he’s qualified to provide commentary.

    I wonder if Logan would be facing a felony charge if this bill were enacted while he was an illegal candidate.

  4. Donald Pay 2023-01-09 12:18

    I recall when I was first collecting signatures I talked to Mrs. Gage, who was an assistant to SOS Alice Kundert. Mrs. Gage was helpful, as was Alice, when I went in to ask questions about the process. Both stressed that circulators were, as they stated, “the first line of defense” against invalid signatures, as well as assisting citizens to make their voices heard. Circulators have a dual role. They stressed that it was important to collect the signatures correctly because these were legal documents and they were the voice of the people. So, the oath is important, because the SOS can’t be looking over everyone’s shoulder as they collect signatures to make sure it is done according to law. They depend on circulators to be the first line of defense.

  5. P. Aitch 2023-01-09 13:41

    Fresh ideas among this group? Where?

    Your legislature deserves a “freshness” grade on every bill proposed, just to help steer them into uncharted waters where the big fish swim.

    Senate Bill 46 = 2 out of 10 for stale thinking

  6. All Mammal 2023-01-09 16:22

    Too bad pragmatism is not a concept our lawmakers find useful. It makes too much sense to first enforce the laws we already have before trying to fix something that would be obsolete if established rules were followed.

    We should slip a spy device into our Roe petitions to catch the SOS when she inevitably violates our constitution by burning, losing, forging, or whatever evil method she goes about to kill our initiated constitutional amendment.

    Damn talibanners have us headed down a slippery slope that always will lead to Iran, Afghanistan, the Holocaust, the Inquisition, the Dark Ages, Salem witch trials, Gilead, etc.

  7. 96Tears 2023-01-09 16:54

    Laws are a farce in South Dakota. They don’t apply to the Protected Class in the SDGOP, who tend to be the worst violators. Why bother passing anything?

  8. larry kurtz 2023-01-09 17:15

    How is this not just another chilling effect on any citizen trying to overturn the whims of a christofascist governor or the capriciousness of a tyrannical legislature?

  9. Cory Allen Heidelberger Post author | 2023-01-09 19:25

    Donald, I agree: the Secretary of State should be the petition-trainer-in-chief. The SOS should take on a teaching an advocacy role for the petition process for candidates and for ballot measures. Encouraging people to register and vote is part of the SOS’s job; encouraging people to participate (correctly, legally!) in the political process as candidates and sponsors should also be part of the SOS’s job.

    I wonder if Monae Johnson has ever interacted in any way with initiative and referendum petitions.

  10. Cory Allen Heidelberger Post author | 2023-01-09 19:27

    96, Manhart wouldn’t have faced any new felony charge under SB 46, as SB 46 deals only with the circulator’s oath. Manhart was living in South Dakota when he circulated his petitions (or at least I haven’t seen any evidence to the contrary).

  11. grudznick 2023-01-09 20:58

    Ms. Monae is probably going to be a real hoot and boon for the heinous measures initiated by the dark-money out-of-state interestes. A hoot, I say.

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