Aw, nertz! If Marty can't give Jason legal advice, who can?

I've been pinning my needles all day, waiting for the announcement Secretary of State Jason Gant said he would make this morning about the status of the Libertarian nominations of Ryan Gaddy and Chad Haber. There is now grave doubt about the validity of those nominations, since SDLP executive committee member Bob Newland says the two men handed him their voter registration applications on Saturday at convention, and Newland mailed those applications to the county auditor on Monday, meaning those applications had not been processed and Gaddy and Haber were not registered Libertarian voters at the time they were nominated, which state law requires they have been to be legally nominated.

Our grave doubts shall remain unsated for at least another day, maybe longer. Secretary Gant had turned to Attorney General Marty Jackley for a legal opinion on the situation. AG Jackley said, No way!

...[T]he question presents a potential conflict of interest. A ruling against Haber would remove Jackley's only opponent in the November election and give him a second full term unopposed.

Previously, Jackley said he was recusing himself from the question and leaving it in the hands of deputies under a "conflict wall."

"I'm not part of those discussions or that decision-making," Jackley said Thursday afternoon. "I'm not overseeing any advice that is given in relation to that issue."

But discussions had been underway for days about a more radical solution: removing Jackley's office from the picture entirely.

By late Thursday, Jackley said, "everyone was comfortable with it and agreed to it" and Gant announced attorney general's office would remove itself entirely [David Montgomery, "Gant: AG Office Removing Itself from Haber Decision," that Sioux Falls paper, 2014.08.14].

So to whom does Gant turn for legal advice? An attorney general from another state? (Oh, I bet Utah is out.) A U.S. Attorney? (Again, more conflicts.) Hire a private lawyer? (Uh oh: not Brandon Taliaferro! Not Joel Arends!)

Jeepers, Jason: instead of trying to find a lawyer not somehow tainted by Haber's scams, it might be quicker to just use the brains whatever God you believe in gave you and that the voters charged you with using, read statute and your predecessor's very clear precedential statements, and call Gaddy and Haber's nominations what they are: illegal.

35 comments

On Thursday, Attorney General Marty Jackley filed a motion in federal court to dismiss independent gubernatorial candidate Mike Myers's lawsuit against Secretary of State Jason Gant. Myers wants Secretary Gant to put Myers's withdrawn running mate Caitlin Collier with his desired replacement, Lora Hubbel, on the November ballot. Secretary Gant refuses to do so, claiming state law does not authorize such a replacement for independent candidates.

I find that reasoning selective and specious. We could probably identify a number of actions Secretary Gant has taken in the interest of solving problems and helping elections run smoothly that aren't explicitly stated in statute but which make perfect sense.

AG Jackley, alas, is backing Secretary Gant's illogic with more illogic:

The state's lawyers argue that current law allows party-endorsed candidates a chance to replace a nominee through a vote of the party. Without a nominating convention or a party vote on Collier's replacement, allowing Myers to substitute Hubbel would "discard the public's representation in the political process and replace it with the will of one individual" [David Montgomery, "Jackley Wants Judge to Dismiss Mike Myers'[s] Lawsuit," that Sioux Falls paper, 2014.08.08].

Statute doesn't spell out any public representation in the nomination of a lieutenant governor any more than it spells out the process for replacing an independent running mate. Yet where Secretary Gant says the absence of the former binds him to inaction, AG Jackley conjures the former ex nihilo as legal grounds for his defense of Gant.

As I have laid out, discarding the public's representation in the political process happens under Gant and Jackley's interpretation: by maintaining the fiction of Collier's running-mate status on the ballot, Gant denies Myers the chance to select and all voters the chance to directly approve his choice for lieutenant governor. If he would win the election, Myers would be forced to submit Hubbel for confirmation to the Legislature, either house of which could reject the will of the voters. The Attorney General's own argument should compel the Secretary to act in the interest of the voters and truth and print Hubbel's name next to Myers's on the ballot.

Gant himself acknowledges that placing Hubbel on the ballot poses no practical problem:

"Should the judge decide to allow the switch, that will be fine," Gant said. "There's plenty of time" [Montgomery, 2014.08.08].

Gant's predecessor, Chris Nelson, testified to the Legislature in 2009 that the state has no compelling interest in locking in the names of independent candidates before August:

At some point, an independent’s going to challenge that.... Their question to the court is going to be, what is the state’s compelling interest for compelling ... an independent candidate to file so early? ... The state doesn’t need to know who independent candidates are until August, when we begin putting the ballot together [Secretary of State Chris Nelson, Legislative testimony on 2009 HB 1234, February 2009; quoted in David Montgomery, "S.D. Independents Might Have Case for Ballot Leniency," that Sioux Falls paper, 2014.05.06].

Without a compelling reason to keep Myers from replacing his running mate, Gant is denying Myers a right that other party candidates enjoy. Recall that Collier officially withdrew on June 12, and Myers officially announced Hubbel as his second choice on July 8. If either GOP Lieutenant Governor Matt Michels or Democratic running mate Susy Blake had withdrawn and been replaced on that timeframe, Secretary Gant would not have batted an eyelash.

SDCL 12-7-1, which uniquely requires independent gubernatorial candidate to file the names of their running mates before they circulate petitions, and SDCL 12-6-56, which uniquely permits parties to replace withdrawn partisan candidates, work together to restrict access to the ballot for independent candidates without basis in compelling state interest. The 1989 El-Amin v. State Board of Elections of Virginia decision says that sort of discrimination is unconstitutional. The 1980 Anderson v. Firestone decision followed similar reasoning, overruling a similar combination of extra statutory burden on independents and absence of statute making clear a replacement process for independent candidates. In Anderson, a federal court ordered Florida to accept the withdrawal of independent presidential running mate Milton Eisenhower and print on the ballot John Anderson's replacement pick, Patrick Lucey.

Precedent and common sense say Mike Myers should have the same right to replace his running mate as partisan candidates enjoy. Neither Secretary Gant nor Attorney General Jackley has offered a compelling state interest in denying Myers and the voters the opportunity to see Lora Hubbel on the ballot as independent candidate for lieutenant governor.

p.s.: Even if the state prevails in quashing Myers's lawsuit, Secretary Gant still can't print Caitlin Collier's name on the ballot. Collier followed the procedure laid out in SDCL 12-6-55 for candidates to withdraw, and that statute says, "No name so withdrawn shall be printed upon the ballots to be used at such election."

25 comments

Secretary of State Jason Gant has refused to place Lora Hubbel on the November ballot. Yesterday Hubbel received a letter from Secretary Gant, dated July 18, stating that there is no statutory mechanism by which his office can accept Hubbel's certification of her status as Myers's running mate nor recognize the withdrawal from the ticket of the candidate Hubbel would replace, Caitlin Collier.

The procedures for the nomination of independent candidates for Governor and their running mates are covered in South Dakota Law (SDCL) Chapter 12-7. SDCL 12-7-1 provides in part "An independent candidate for Governor shall certify the candidate's selection for lieutenant governor to the secretary of state prior to the circulation of the candidate's nominating petition. The candidate and the candidate's selection for lieutenant governor shall sign the certification before it is filed." In this case, Ms. Collier was properly certified before the circulation of the petition.  Because the time for petition circulation and the filing deadline have passed, there is no statute allowing certification of another independent candidate for lieutenant governor. Additionally, an independent candidate for lieutenant governor cannot simply drop off the ballot. Article IV section 2 of the South Dakota Constitution requires that the governor and lieutenant governor be jointly elected.

If Michael Myers is elected as Governor he may appoint a new lieutenant governor subject to confirmation by majority members [sic] of each house of the legislature pursuant the South Dakota Constitution Article IV section 6 [Secretary of State Jason Gant, letter to Lora Hubbel, 2014.07.18].

I recognize the need for the secretary of state to be a stickler for rules, and Secretary Gant has demonstrated that he can be a stickler when he wants to be. But in this case, Secretary Gant is needlessly punishing Hubbel (a known bête noire among Gant's Republican friends), Myers, and the voters. No votes have been cast. No ballots have been printed. No dispute exists over the practical facts of Collier's withdrawal or Myers's selection of Hubbel. No fraud has been committed by anyone in seeking to place Hubbel's name on the ballot next to Myers's, and no harm will be done to anyone by the stroke of the pen that would align the November ballot with reality.

Quite the opposite: by refusing to place Myers's running mate on the ballot, Secretary Gant is disenfranchising the thousands of citizens who will hear Myers and Hubbel campaign and wish to vote for Myers and Hubbel in November. While citizens voting Republican or Democrat get to choose their lieutenant governor by direct vote, Secretary Gant is pre-empting the will of Hubbel voters and subjecting their choice to the will of a partisan Legislature.

As with many other electoral laws, the statute Secretary Gant cites discriminates against candidates who are not members of recognized political parties. Independent Myers had to get Collier to file her status as his running mate last winter, before he could circulate his petitions. Republican Governor Dennis Daugaard and his Democratic challenger, Rep. Susan Wismer, did not have to name their running mates until June. Independent running mates apparently have no right to withdraw, and Independent gubernatorial candidates have no right to replace. If either Republican running mate Matt Michels or Democratic running mate Susy Blake decided to withdraw today or during the next two weeks, statute would clearly permit Daugaard and Wismer to name replacements through August 12.

Keeping Lora Hubbel off the ballot serves no compelling state interest. The question now is whether the Myers-Hubbel campaign will take that argument to court. Challenging statutory discrimination and disenfranchisement could win Myers more support among Independents who are sick of the big-money parties rigging the system. Myers is a law professor, so he could argue his own case and minimize the impact on his cash-strapped campaign. And not that anyone should use the courts for publicity, but one could argue that fighting a high-profile court battle against the Secretary of State could bring the Myers-Hubbel campaign more positive publicity for the dollar than any other investment of their sparse campaign resources.

But time is tight: Myers has three weeks to make these arguments in court. After that, the chances of a judge raising a stop sign to printed ballots (even false ballots) diminish greatly, and we would have to wait for a legislative fix.

4 comments

My latest column for South Dakota Magazine discusses the disadvantages Independents face in getting on the ballot in South Dakota. I propose a modest package of reforms to our electoral laws to treat Independents more fairly:

  1. Establish a uniform filing deadline for all Independent candidates for statewide and legislative offices: the last Tuesday in July.
  2. Require political parties to submit their convention nominees by the last Tuesday in June.
  3. Reduce the Independent nominating signature requirement to the either the lower or the average of the major party signature requirements.
  4. For offices like attorney general, for which partisan candidates are nominated by convention rather than petition, set the Independent nominating signature requirement equal to the number of voting delegates attending the largest party convention in the state [Cory Allen Heidelberger, "Jonesing for Indies," South Dakota Magazine, 2014.07.09].

The odd events of this year's petition season already have legislators, the press, and pundits talking about shaking up our election laws during the 2015 Legislative session. Do we need to include measures to give Indies a fairer shake at ballot access as well?

20 comments

...and becomes a state legislator?

Aberdeen attorney Brandon Taliaferro did a good job of keeping his compulsively vocal new client Annette Bosworth quiet at her arraignment last Monday. Now if Taliaferro could just get that memo to the spokesman to whom Bosworth has paid at least $5,000, a spokesman who spent an inordinate amount of time in the comment section here trying to get folks to talk about anything other than the fact that Bosworth is guilty of swearing a false oath on her nominating petition and committing felony perjury, a fact that no one, Bosworth herself included, has denied.

Amidst the dense smokescreen belched by the Bosworth media machine, Taliaferro may find one wisp of an argument that may have even the faintest relevance in the courtroom. Team Bosworth has asked for some legal precedent for a person being "charged for signature violations where they got legitimate signatures, i.e. real people who signed?"

Such a request is based on a false reading of what Bosworth did: she did not get legitimate signatures; someone else did, and she subsequently swore a false oath that she got those signatures. You won't find a precedent for the state charging a petition circulator who properly witnessed and verified signatures, because that's not a crime.

But even if we accept that the absence of precedent somehow calls into question the validity of the charges against Bosworth, an eager reader fills the gap with the Schlekeway precedent.

Todd Schlekeway -- Tim Calhoun

Todd Schlekeway and Tim Calhoun agree: Annette Bosworth is toast.

In 2004, Todd Schelekway was an eager young organizer working for the South Dakota Republican Party. He got a notary seal and helped process absentee voter applications on campus as part of an SDGOP push to get student votes. Unfortunately, Schlekeway notarized some absentee voter applications that he did not personally witness. That's a misdemeanor. Attorney General Larry Long and Secretary of State Chris Nelson quickly investigated and brought charges against Schlekeway and five other GOP workers. Schlekeway pled guilty, paid $245, got a 30-day suspended sentence, and gave up his notary seal.

Notice: the voters requesting the absentee ballots were real voters. Their signatures were real. Schlekeway just didn't witness those signatures. Schlekeway 2004 sounds a lot like Bosworth 2014, right?

When the charges were filed in October 2004, barely two weeks before the election, Minnehaha County state's attorney Dave Nelson offered this observation about charges that some electoral observers could have rightly called unusual:

Dave Nelson said the six are charged with improper use of a notary commission, a Class 2 misdemeanor punishable by up to a month in jail and a $200 fine. They can also lose their notary licenses.

"Notary violations are very, very common" in government and business, he said.

But unlike most cases that aren't prosecuted, the six were charged because they made it possible for someone's vote not to count, Dave Nelson said.

"The potential consequences of these acts are significant and far-reaching," he said [Carson Walker, "Six Charged in Ballot Probe,"AP via Rapid City Journal, 2004.10.24].

Yet our state officials were not trying to disenfranchise any voters. Remember: Larry Long and Chris Nelson were Republicans. The absentee ballots in the solicitation of which Schlekeway and friends were misdemeanoring were meant to boost Republicans. Screwing up the notarization opened the door for Democrats to challenge those ballots. Long and Nelson did not want the courts throw out the ballots that Schlekeway's sloppiness spoiled:

Long said he hopes that if any ballots are challenged in court, the judge sides with the voter's right to be counted and agrees that the solution was a valid way to fix problems caused by wayward notaries [Walker, 2004.10.24].

In the Schlekeway case, Long recognized that the state could simultaneously and consistently seek a liberal interpretation of the law to protect the will of innocent voters and strictly enforce notary law to punish wayward notaries who put innocent voters' will at risk. Again, Schlekeway 2004 sounds a lot like Bosworth 2014. Long's successor, AG Marty Jackley, went out of his way to protect voters' (or in this case, nominators') intent from a wayward petition circulator. But in consistency with that desire to protect those innocent citizens, he is prosecuting a petition circulator who could well have thwarted their intent with her flagrant disregard for the requirements of the circulator's oath.

Now Annette, before, you poo-poo the precedent, look at where Schlekeway's election crime got him. The George W. Bush campaign was nice enough to give Schlekeway and others involved in the voting fraud campaign jobs right away in Ohio (where Bush won! well done, Todd!). Four years later, the South Dakota GOP invited Schlekeway back to become the first and so far only Todd to serve in the South Dakota Legislature, for one term in the House and one term in the Senate.

So follow the Schlekeway precedent to its logical conclusion, and a quick, contrite guilty plea could land Annette a job campaigning for some Republican favorite in a big Senate campaign. Perhaps the party would send you to join your husband Chad in Alaska, where you could help one of the establishment Republicans beat back Joe Miller's repeat Tea Party challenge. Then, having served the party well, they'd bring you back to South Dakota in 2018, when your District 13 Senator, Phyllis Heineman, will be term-limited out. What better precedent could you ask for?

Of course, the vital difference between Schlekeway 2004 and Bosworth 2014 is that Schlekeway committed a misdemeanor in the service of the party favorite John Thune, while Bosworth committed a felony to get on the ballot and compete with party favorite Marion Michael Rounds (and you were competing with Rounds, right, Annette?).

The Schlekeway precedent sinks the only remotely legal argument Team Bosworth has offered in defense of her perjury charges. If Bosworth were smart, she'd find a way to turn that precedent to humbler success in a future election... but I think she's shot holes in the bottom of that boat as well.

14 comments

Amid the hubbub of a perp walk and press conference for former illegitimate—and current potentially prosecutable—U.S. Senate candidate Annette Bosworth today, it's easy to forget that Republicans' fourth-favorite candidate in Tuesday's five-way race isn't the only one-time Senate hopeful facing charges.

But Clayton Walker might just run into Bosworth in Hughes County Circuit Court as he faces his own dozen charges (6 of Filing a False Document, 6 of Perjury, each a Class 6 felony) in relation to his invalidated petition to run as an Independent in November's general election.

A look at the investigator's affidavit and the criminal complaint against Walker shows that South Dakota's Division of Criminal Investigation (DCI) put in some legitimate pavement-pounding in search of addresses and individuals listed on Walker's petitions. In many cases, they found that those addresses and/or individuals simply didn't exist.

My favorite such discovery didn't actually require any pavement pounding at all. It just required Special Agent Dave Stephan to know the Sioux Falls location of his investigative colleagues working for the U.S. Government:

In an attempt to verify several of the addresses and names listed Petition “A”, he [SA Dave Stephan] found the following:

...

Line 2-the name and signature of Annette Shell lists an address of 311 1st-no such address exists. The actual Federal Building is on this whole west side­ of the 300 block of 1st Avenue.

Line 3-the name and signature of Marge Lot-lists an address of 313 1 Avenue-no such address exists. The actual Federal Building is on this whole west side of the 300 block of 1st Avenue

Line 7-the name and signature of Sara Braxden-lists an address of 341 1st Avenue-no such address exists. The actual Federal Building is on this whole west side of the 300 block of 1st Avenue. [Affidavit of Pat West, 2014.06.02, pp. 6-7]

Note to any future petition signature forgers: try to choose fake addresses that aren't likely to be familiar to the investigative community in your chosen jurisdiction.

At least one of Walker's supposed signers hasn't been able to sign anything in the last decade:

5. On 5-9-14, SA Steve Ardis attempted to verify addresses and signatures found on the nomination petitions signed in Lawrence County dated 4-6-14. He did the following:

  • He traveled to 627 E. Colorado and found that it was vacant. He identified that Mary Herrboldt previously lived at the address. He made contact with Herrboldt and she stated that the signature of the form listed as “Mary Hawks” is the name of her dead aunt, who passed away 10 years ago. [Affidavit of Pat West, 2014.06.02, p. 4]

While Walker doesn't seem ready to follow Bosworth's lead in turning herself in, he does provide a certain Bosworth-ian admittance that he might not have been present for every collected signature:

I [Supervisory Special Agent Pat West] then asked him about the 4-6-14 date in which there were signatures from Butte, Lawrence, Pennington and Minnehaha counties that were collected on the same day and signed by him (Clayton Walker) as the “Signature of Circulator”. Walker stated, “I had some employees and other people that I had hired. Must have got out and got those signatures." I Specifically asked Walker about those dates in question and whether he signed the nomination form as the “Signature of Circulator”. Walker would not answer the question. He then requested that I fax him the forms so that he could look at them. I told him that I was just down the street and would be glad to come right over and show them to him. He stated, “I don't have time right now.” Walke[r] advised that he did not want to talk with me anymore and asked to speak with an attorney. He then continued to rant stating that I was picking on him and not investigating anyone else. Walker then hung up on me. [Affidavit of Pat West, 2014.06.02, p. 3]

Setting aside the fact that he wasn't alone in being investigated (West's boss, DCI Director Bryan Gortmaker was completing his own investigation of Bosworth), Walker could reasonably be expected to be a little out of sorts when SSA West came a-calling. After all, this DCI investigation was over and above the successful challenge from Brookings resident Mary Perpich that provided election officials enough information to invalidate 1,613 of Walker's signatures and render his petition short of the required 3,171 signatures to gain a spot on November's ballot.

But it seems now that Walker would indeed do well to spend some time with that attorney of his. Invalid signatures are one thing, but—as Secretary of State Jason Gant and Attorney General Marty Jackley have said all along—criminal prosecution is something different entirely.

9 comments

Annette told me not to do this. But this is what happens when you use your children as campaign props... and turn them into criminals.

Annette appears determined to break South Dakota law right up to the end of her illegitimate Senate candidacy (counted now in minutes). The following photo appeared on her Facebook page around Sioux Falls lunchtime today:

Bosworth Sons Primary Day shirts at polls

(click to embiggen)

Let's skip laughing at how many of her commenters are from outside South Dakota and zoom in on what Annette's children wore to the polls in Sioux Falls:

Bosworth Sons Primary Day shirts at polls-close

 

Mom for U.S. Senate. Yes, lovely little urchins. Let's see what South Dakota Codified Law 12-18-3 has to see about their choice of poll-wear:

Except for sample ballots and materials and supplies necessary for the conduct of the election, no person may, in any polling place or within or on any building in which a polling place is located or within one hundred feet from any entrance leading into a polling place, maintain an office or public address system, or use any communication or photographic device in a manner which repeatedly distracts, interrupts, or intimidates any voter or election worker, or display campaign posters, signs, or other campaign materials or by any like means solicit any votes for or against any person or political party or position on a question submitted or which may be submitted.... [SDCL 12-18-3].

If Annette took her children to the polls, and if they didn't change or put on jackets before they went, her two youngest boys broke South Dakota election law.

Hmm... maybe they just don't want to be separated from her when Marty Jackley cuffs her after the election and thought they'd just go to jail with her. Ah, family solidarity....

5 comments

Hey, it's another Democrat with a four-syllable, twelve-letter name! Rock on, brother!

Tony Bartholomaus announces that he is running for Minnehaha County Auditor. The 37-year-old Sioux Falls Democrat says he wants to bring his banking experience to the auditor's office:

On May 28th, 2014 Tony Bartholomaus announced his candidacy for Minnehaha County Auditor. Bartholomaus, 37, is married and the father of two with his wife Ashley. He is employed as a personal banker in Sioux Falls. Bartholomaus, a Democrat, is a newcomer to politics:

I get a great deal of pleasure in my current work helping my clients achieve financial success and stability. My current position requires attention to detail, financial expertise, a strong work ethic, a team effort and, sometimes, long hours. I want to bring these same qualities of competence and hard work to the office of Minnehaha County Auditor and provide the people of Minnehaha County the leadership the office needs [Anthony Bartholomaus, press release, 2014.05.28].

Bartholomaus says Minnehaha County could use a good dose of attention to detail to make up for "miscues" by current auditor Bob Litz:

Unfortunately, the confidence the Auditor's office enjoyed in the past has suffered under its current leadership . Recent ballot errors and election mistakes have been well documented in the press and at County Commission meetings. The Auditor’s office has a hardworking staff. And, just like the citizens they serve, they deserve the support and leadership of a competent Auditor That is why I offer myself to the citizens of Minnehaha County as a choice... the right choice for Auditor this November [Bartholomaus, 2014.05.28].

Bartholomaus says his main message will be "restoring the tradition of hard work and competence." Hey, Tony, with a message like that, are you sure you don't want to run for Secretary of State? Whichever Democrat runs for state election chief can borrow Bartholomaus's text verbatim.

7 comments

Recent Comments

  • larry kurtz on "Jett to the Polls an...": this is pretty cool: http://grist.org/politics/...
  • John Hess on "Huether Botches Firs...": This could have been a fun program. What's sad pe...
  • Bernie on "Supercondensed Votin...": Cory, everyone at South Dakota Magazine doesn't ev...
  • Kurt Evans on "Pressler Focuses Fin...": Cory Heidelberger asks: >"When is the last tim...
  • tara volesky on "Haber Plagiarizes Aa...": Does that mean we can't vote for Wismer because of...
  • John Hess on "Huether Botches Firs...": Equality of representation would not make it legal...
  • JeniW on "Huether Botches Firs...": The more comments I read about the plow painting, ...
  • Steve Sibson on "Supercondensed Votin...": Stace, I like your argument, but we are not playin...
  • tara volesky on "Haber Plagiarizes Aa...": Haber will get the Indian vote....
  • Roger Cornelius on "Supercondensed Votin...": The Rapid City Journal's endorsement include No o...

Support Your Local Blogger!

  • Click the Tip Jar to send your donation to the Madville Times via PayPal, and support local alternative news and commentary!

Hot off the Press

Subscribe

Enter your email to subscribe to future updates

South Dakota Political Blogs

Greater SD Blogosphere

Visit These Sponsors

Vote for Robin Page—District 33 Senate
Mike Myers, Independent Candidate for South Dakota Governor
Conversation and Lunch with Democrats!
Join Stan Adelstein's conversation about South Dakota's past and future

SD Mostly Political Blogroll

South Dakota Media

Madville Monthly

Meta