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SOS Johnson’s Election-Audit Rules Exclude Independents, Leave Unclear State Reimbursement for County Expenses

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.


  1. leslie 2023-09-06 22:44

    any bets whether the elected incompetent Monae will be at the state sponsored Noem’s Friday party for Trump (that he had to waive personal felony arraignment appearance to his lawyers) in order to attend?

    Oh the glamour!! It is funny if it isn’t so distractively dangerous.

    Bob Mercer has certainly become one of the good guys.

  2. larry kurtz 2023-09-07 16:49

    New Mexico was one of seven states where fake electors were recruited to steal the 2020 presidential election for Trump.

    Suits to block Trump from the Republican primary ballot have also been filed in Colorado, Florida, Arizona, Georgia, Michigan and New Hampshire but many more are expected including in New Mexico.

    Do you guys know anyone with the legal standing who could sue South Dakota’s secretary of state to keep Trump off the ballot under Section 3 of the Fourteenth Amendment?

  3. Arlo Blundt 2023-09-07 23:21

    The scheme is half baked…crisp on the outside, raw on the inside.

  4. Mike Zitterich 2023-09-08 11:27

    No one is gonna block Trump, Supreme Court will nit allow that to happen. States cannot stop citizens/voters from nominating candidates placing them on ballot. And DEMS are not back pedaling due to Trump citing 18 U.S CODE Section 241, they are now running scar3d of being accused of voter intimidation, conspiracy, and threatening potential political opponents.

    Even MSNBC is saying democrats cannot block Trump the ballot…beware Democrats, your days are numbered, cause when wr install Trumo back in WHITE HOUSE your all convicted

  5. All Mammal 2023-09-08 11:38

    The intelligence deprivation in the America First pile is so so sad. I never knew there were so many grownups with learning impediments in my own country until fat boy was elected president. How did we let conmen wrangle up all the high-functioning folks and turn them all mean? We should have protected our people with disabilities better.

  6. larry kurtz 2023-09-08 11:50

    Only half of Republicans want Trump on the general election ballot so Republicans with legal standing are driving the lawsuits to block him.

  7. larry kurtz 2023-09-08 11:52

    Chris Christie has the legal standing to sue in every state, for one.

  8. larry kurtz 2023-09-08 11:56

    Mike Rounds has the legal standing to sue in South Dakota but he lost his balls when the house he built in a swamp flooded and blamed the Corps.

  9. larry kurtz 2023-09-08 11:57

    Mike Zitterich makes dirt look smart.

  10. larry kurtz 2023-09-08 12:02

    Chuck Schumer can recruit a handful of Earth haters like Mike Rounds, change the Senate rules then vote Trump off every ballot and not worry about it going to the packed Supreme Court.

  11. O 2023-09-08 12:42

    I believe Mike Zitterich has part of this right: Trump can be put on GOP nomination ballots (remember, political parties are private NOT government entities) — can even win the GOP nomination — maybe even can win the general election, BUT if the 14th Amendment triggers on a Trump CONVICTION of insurrection, then the Supreemes will have to either vacate the conviction or the 14th Amendment. The 14th doesn’t say a person cannot run, or be nominated, or that people cannot vote for someone; it says the insurrectionist cannot hold office. I feel like that would be the ball game of any facade of credibility for the Court. The SC is the place that says that laws outweigh even popular sentiment; popular gun laws for example must bow to Constitutional prohibitions/protections. For all the GOP bluster about Civil War 2.0, the Court placing a convicted Trump into office might just be the breaking point of the legitimacy of this government for the other side.

  12. O 2023-09-08 12:48

    It is clear from the GOP primary so far that nobody is running against Trump, but many are trying to be the GOP nominee — KNOWING they cannot beat Trump for that nomination. Even more than Democrats, Republicans want — NEED — Trump to be disqualified from election. The sooner the better; critically before only one name has to be put forward to the general election. That is why no other nominee (except Christie) will speak against Trump, they want his cult following, but know they cannot be seen as the one that caused Dear Leader’s downfall. So all pander to the Trump loyalist voters and hope that the courts get Trump out of the way — keeping their hands clean of the deed. A gutless, but tactically sound strategy.

  13. Dicta 2023-09-08 13:20

    “All democrats are convicted.” Sane statement, Mike. I dont know how anyone could think a person who believes 100 million people are going to be convicted of SOMETHING could be mentally ill.

  14. Arlo Blundt 2023-09-08 13:43

    The 14th Amendment has never been used to exclude a candidate, even a Confederate Army Officer, from the ballot. After the Civil War, a loyalty oath to the Constitution of the United States was put into effect to restore citizen’s rights to Confederate soldiers and citizen officials. Most took the oath (including Robert E. Lee and Jefferson Davis) and a few did not (Including Nathanial Forrest, who founded the Klu Klux Klan). As part of the corrupt political deal giving Hayes the Presidency in 1876, the Republicans agreed to minimize the importance of the Loyalty Oath in Louisiana and other Deep South states.

  15. larry kurtz 2023-09-08 13:58

    Trump is disqualified from holding office so any secretary of state allows his name on the ballot is violating their oath of office.

  16. larry kurtz 2023-09-08 13:59

    Trump is disqualified from holding office so any secretary of state who allows his name on the ballot is violating their oath of office.

  17. e platypus onion 2023-09-08 14:41

    SCOTUS to decide in October whether to take on 14th Amendment case.

  18. Donald Pay 2023-09-08 14:51

    At first I was against disqualification under the 14th Amendment, but reading the history of that amendment and applying it to the Trump plot to violate the Constitutional order, I arrived at the conclusion that, while Trump’s activities were not as traitorous as the Confederates, they were just as violating of the Constitutional order. At least it is time to test in court what behavior is allowed in resisting the orderly transfer of power, and whether such Presidential-instigated violence and subterfuge is beyond the limits of what ought to be allowed for continued service in our Constitutional system. It will be tested in court if any state does go ahead with this. I think it would it be a jump ball whether the current US Supreme Court would agree with states who disqualify Trump from their ballots. I could see a 5-4 decision either way.

  19. larry kurtz 2023-09-08 14:54

    It’s not impossible that Chief Justice Roberts and Justice Gorsuch will vote with Justices Kagan, Sotomayor and Brown Jackson.

  20. larry kurtz 2023-09-08 16:00

    And we’ve seen, and will see, federal courts toss lawsuits for lack of standing if voters bring claims, voters with generalized grievances undifferentiated from the general public.

  21. Mike Zitterich 2023-09-08 18:37

    Lol, the 14th Amendment cannot be used on candidates for presifent, any citizen has the right to petition to place anyone on ballot

    Section 3 I’d quite clear, Noone who was convicted of treason, insurrection, it rebellion can be a U.S SENATOR, U S REP, ELECTOR for President.

    That person also cannot hold any Federal or State Public Offic3 if Trust in the Government.

    Trump would have to win the election, become President. And the State Legislatures or the U.S REPS can bring forth Articles of Imprachment vs the sitting President.

    You would ha e to PROVE your case let alone get a conviction against someone in a publ9c court first. You got nothing. Keep trying.

  22. Mike Zitterich 2023-09-08 18:39

    Section 3 of 14 amendment was meant to keep INFLUENCERS out of places in Federal or State Govts where they play a role in nominating, appointing, electing Presidents.

  23. larry kurtz 2023-09-08 19:11

    Trump should lose his passport and be under house arrest.

  24. larry kurtz 2023-09-08 19:15

    Republican is simply another word for circle jerk.

  25. Mike Zitterich 2023-09-08 19:45

    And DEMOCRATS is just another word to describe someone with disabilities and lies about who they are

  26. larry kurtz 2023-09-08 21:17

    Is that a 12 pack of Bud Light on board there, Mr. Z?

  27. grudznick 2023-09-08 22:19

    Lar, I know you know this, but grudznick would still be the City Manager at a no to low cost value for Sturgis City, if you were my advisor. They balked. I backed away. Get your road dogs on this if you want grudznick to run that show.

  28. larry kurtz 2023-09-09 08:23

    Minnesota Secretary of State Steve says he doesn’t have the authority to block Trump from the ballot but anyone may petition for it and that if it goes to the State Supreme Court he’d abide with the ruling. Trump is trying to move the case in Colorado to federal court but it will end up back in the state anyway.

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