Mary Perpich successfully challenged Clayton Walker's nominating petition, ending his aspiration to be an Independent candidate for Senate. Secretary of State Jason Gant agreed with Perpich that over 1,600 signatures, nearly half of those Walker submitted, were bogus, leaving him 1,400 shy of the 3,171 Indies need to make South Dakota's statewide ballot.
There's no way Walker can recover enough of those signatures in any legal challenge. He outright lied, making up names like Dusty Cover and Cherry Drop. Walker's only resort now is to try throwing out Perpich's challenge on a technicality. Mr. Montgomery reports that Walker is arguing that Perpich filed her challenge too late. He says that state law requires petition challenges be filed within five days of when the candidate files the original petition:
Within five business days after a nominating, initiative, or referendum petition is filed with the person in charge of the election, any interested person who has researched the signatures contained on the petition may file an affidavit stating that the petition contains deficiencies as to the number of signatures from persons who are eligible to sign the petition. The affidavit shall include an itemized listing of the specific deficiencies in question [SDCL 12-1-13].
Walker submitted his petition on the deadline date of April 29. Secretary Gant did not certify the petition until May 1. Perpich submitted her challenge May 8, seven business days after Walker filed his petition with the Secretary of State, five business days after the Secretary of State certified the petition.
When I challenged Annette Bosworth's illegitimate Senate nominating petition last month, I wondered about exactly that statute and the challenge timeframe it species. Bosworth submitted her petition on March 25, but Secretary Gant approved it on March 26. To be safe, I operated on the assumption that the clock started ticking when the petitions were "filed with" the Secretary. However, the Secretary's office informed me during the process that they start the clock ticking when the Secretary certifies the petition.
Secretary Gant consistently applied that same standard to the Walker challenge:
"Mr. Walker is wrong," Gant said in an email. "Petitions are received on a particular day and they are filed on a particular day. The difference is that received is the date they are received into the office. Just like the deadline for petitions to be received by the SOS office on a particular day. The filed date is when the candidate or issue is approved or denied access to the ballot... The challenge time frame can only begin once the petitions are filed by the office. That determination of approval or denial of the ballot is what allows for an interested party to challenge the decision of the SOS."
Walker's petitions, Gant wrote, were "received" on April 29.
"On May 1, I filed his petitions as approved for the ballot," Gant said. "Five business days after May 1 is May 8, the date the challenge was received" [David Montgomery, "Walker vs. Gant on Petition Challenge," Political Smokeout, 2014.05.21].
It almost sounds like Secretary Gant is confusing with and by. But in SDCL 12-1-13, filed appears to mean not the action of the candidate handing the petition to the Secretary, but the action of the Secretary or his deputy formally placing that petition in the file marked Certified.
That standard makes sense: no official petition really exists for the public to challenge until the Secretary certifies it. Secretary Gant took a strangely long two days to review and approve Walker's petition; it would be unfair to deny challengers those two days to conduct their challenge or to require that challengers engage in the expense (money and time) of a challenge before they know whether the Secretary himself will spot errors and render a public challenge unnecessary.
Walker's only hope of reclaiming his spoiler status thus rests on one verb and one preposition against a consistent, logical, and fair standard for public review. I think Walker loses.
Crooked or incompetent, Gant and Jackley must go. If they did their jobs and gave Walker the boot, they could possibly err on the side of ridding the ballot of a person who made a mockery of South Dakota's electoral process. Would Walker have appealed that action? Ninety-nine percent certain he would not.
But, using a technicality, they erred on the side of giving this creep and his illegal petitions validation. That speaks volumes on their character.
I don't think Gant is seeking re-election, so when his term is up, he will be gone. As for Jackley, don't count on his leaving. unless it can be proven that he has done something illegal, and maybe not even if that were to happen. He is a Republican and has strong support from the legislators.
Creepiness aside, I believe Cory is correct in reasoning that the only logical interpretation of the statute is the way Gant is interpreting it here. It becomes even clearer when we consider the inordinately long time the SOS Office took in certifying some petitions for Legislative races - in some cases fully 3 or 4 'business days'. Obviously, the intent of the law was not to allow a delay in processing by the SOS Office to practically pre-empt challenges to candidate (or ballot issue) petitions. In this instance, and maybe ONLY this instance, I agree with Mr Gant.
Mr. Gant is wrong. SDCL 12-1-3 uses the word "filed" twice. It talks about the date the petition was "filed" and the date the affidavit challenging the petition was "filed." Mr. Gant wants to apply two different definitions to the word "filed" within one statute. He claims the petition is "filed" when it's certified, but the challenging affidavit is "filed" when it's received. If "filed" means "received" across the board, Ms. Perpich's challenge is late. If "filed" means "approved by the secretary of state" across the board, Ms. Perpich's challenge is late. Mr. Walker 1. Jason Gant 0.
The only reason this is an issue is because Mr. Gant's office certified apparently fraudulent, visibly fraudulent, petitions with 1,600 bad signatures that fell 1,400 short of the threshold needed. Epic fail! Now Gant is trying to bastardize the law to dig himself out of a hole of his own creation. Doesn't that describe his whole tenure as Secretary of State?
Now, even if Mr. Walker wins in court on the challenge issue it may be a hollow victory. If he gets charged with election fraud the court may order him off the ballot anyway.
R, that's a really good argument about the wording of the law. Can "file" effectively mean two different things in the same statute? Can Gant make the distinction by noting that the verb is used in the passive voice, without a clear grammatical subject specifying the filer, in the first instance with respect to the petition but then used in the active voice, with the subject "interested person" specifying the challenger, in the second instance with respect to the challenge?
I do have deep questions as to what was going on during that two-day delay in the SOS office.
Filed means received. Period. The court should not contort the law to rescue Gant. Everybody already knows that Gant has been a disaster, and he owns this Walker matter. Let him wallow in it. The Attorney General's Office should bring a case and ask that Walker be removed from the ballot.
R, if your interpretation holds (and you have simplicity on your side), can AG Jackley bring a separate court action to remove Walker from the ballot? Or will that be Perpich's responsibility? Or could Gant himself ask the courts to act on the facts brought to light by the challenge? Walker himself appears not to dispute the fraudulent nature of his signatures, which is damning.
Gan't and the AG's office will have to figure out how to attack it, but the SOS's legal interpretation ain't gonna fly. He's screwed things up enough already. Maybe he should just leave the lawyering to Mr. Jackley.
Missing in this entire conversation is the point brought up by Cory's challenge to Bosworth's petitions. The law needs to be changed to lengthen the amount of time available to make the challenge as well as easier and less costly access to the petitions by anyone interested in making such a challenge. That law needs to be changed.
ANY LEGISLATORS LISTENING?
only lawyers get to decide what "is, with and by" mean? it takes us 3 years to memorize our personal 4 inch thick Black Law Dictionarys. We also read thousands of case precedents in that time and come to realize every word is subject to rules of construction by statute, rules regulations, precedent and sometimes session laws. SOS has access to lawyers to assist implementing new laws. LRC employs lawyers to research and draft concise language. here, file means delivering the petition to the office of the official. often that means date of mailing. gant must not be a lawyer. his explanation is similar to Sibson's poetry on this blog.
Speaking of poetry. Where is Blindman. I sure miss his poetry.
I think we need some policy debaters to engage in a little topicality debate. I loves me some good topicality debate.
With respect to AG Jackley filing a court challenge to kick Walker off, he already said that was not in the purview of his job as AG. Jackley has said on more then one occasion that his job is to be lawyer for SD's higher office holder. To kick walker off a private citizen will have to file a 2-1-16 challenge in circuit court if walker challenges gants dec and is successful which he should be.
Im not even sure that if walker challenges gants decision in court that jackley would be the one that represents gant. As far as it goes, its worse for gant and co to have walker on the ballot and I think he should be, because the republican senate primary has turned into a circus.