Bob Mercer reports that the election-audit rules produced by Secretary of State Monae Johnson’s summer panel on election integrity are up for public comment (through September 24) in anticipation of their hearing before the state Board of Elections on September 27 in Pierre. The rules mostly lay out the forms and tally marks that local post-election auditing boards will use to hand count votes in two contests in five percent of randomly selected precincts, per the dictates of 2023 Senate Bill 160, now enacted in SDCL 12-17B-18 through 12-17B-25.
61 counties have fewer than 20 precincts, so the 5% rule requires those counties to pick only one precinct for auditing; however; SDCL 12-17B-20 requires the audit review at least 100 ballots, so a county that draws a really low-turnout precinct for an audit will have to draw one or two more precincts to audit. In the 2022 general election, for instance, Ziebach’s six precincts had ballot totals of 29, 38, 57, 66, 164, and 329.
The five counties that will automatically have to pick more than one precinct under the 5% rule are Codington (23 precincts, so draw at least 2 precincts to audit), Lincoln (31 total, draw 2), Meade (41 total, draw 3), Pennington (46 total, draw 3), and Minnehaha (total 75, draw 4).
Statute does not specify how many people each county’s post-election auditing board should have; SDCL 12-17B-18 only directs the county auditor to appoint a board “of sufficient size to promptly complete the audit.” Conceivably, Ziebach and other small counties might appoint a board of the minimum three that proposed rule 5:02:23:10 seems to envision (one to announce a vote, one to mark the tally sheet, and another to mark the duplicate tally sheet) to audit their randomly selected 100-some votes, while Minnehaha might appoint a dozen members to plow promptly through the thousands of votes in their required sample.
The proposed rules as drafted will make it hard for any county to appoint more than three members and impossible to appoint more than five or six. While SDCL 12-17B-18 says, “The members of the county auditing board may not all be members of the same political party,” Secretary Johnson’s proposed rule 5:02:23:02 says, “Members must be of different political parties….” That wording changes the intent of statute in two important and problematic ways. First, statute would allow a board of two Republicans and one Democrat, or three Republicans, three Democrats, and three independents. Johnson’s rule says there cannot be more than one of each flavor on an audit board. South Dakota recognizes only four parties right now—GOP, Dem, Libertarian, and No Labels. If the Greens get their petitioning rears in gear, we’ll have five, but that would mean the most members an audit board could have would be six, including an independent, and that assumes you could even find one registered Green and No Labeler out in Dupree or Bridger.
Second, Johnson’s wording may limit audit board membership even further. Johnson’s rule says audit board members “must be of different political parties.” Read closely, those words mean each member must belong to a party. Independents do not belong to a party. Thus, as written, Johnson’s rule appears to preclude independents from serving on post-election audit boards. The statute avoids that trap with its wording, “may not all be members of the same political party.” An auditor can look at independents and the statute and say, “Nope, they aren’t members of the same political party as the Republicans and Democrats I want to appoint, so I can appoint those independents, too.” But an auditor looking at Johnson’s rule will have to say, “Sorry, independents: the rule says members must be of a party, and you’re not of a party.”
Secretary Johnson’s panel also failed to follow fully the instructions laid out in SDCL 12-17B-19 to promulgate rules “administering the reimbursement process and defining reimbursable expenses and reimbursement rates for post-election audits.” The proposed rules don’t actually define reimbursable expenses—i.e., establish the limits to what the state is required to reimburse counties for doing in their post-election audits. Proposed rule 5:02:23:16 gives examples of reimbursable expenses—”board member pay for conducting the audit and for training prior to the audit (if applicable), supplies, rental costs for the location to conduct the audit in, publication costs, ballot storage costs, travel (mileage)”—but brackets those examples with “include but are not limited to” and “etc.”, meaning anything could be a reimbursable expense. Johnson’s rules also give no hint of the reimbursement rates, leaving the door open for counties to bill the state at widely different rates for copies, supplies, labor hours, and all the other etceterals to which this vague rule opens the Secretary’s purse.
Alas, Secretary Johnson evidently spent more time fantasizing about election fraud than doing the hard work of guiding her election-integrity panel to craft clear, effective rules for post-election audits. Let’s hope the Board of Elections picks up Johnson’s slack on September 27.