The Senate State Affairs Committee heard concerns from the American Civil Liberties Union this morning that the petition reform legislation working its way through Pierre may need some changes to protect ballot access for new political parties.

In testimony on Senate Bill 69, South Dakota ACLU policy director Libby Skarin said her organization understands the overarching reasons the Board of Elections has proposed this bill along with SB 67 and SB 68, to improve the validation process for nominating petitions. However, said Skarin, moving the petition circulation period one month earlier, to a submission deadline at the end of February, creates ballot access issues, especially for new political parties seeking official recognition from the state. Skarin said that the ACLU brought litigation in 1984 challenging a February petition deadline and got that deadline moved later.

To flesh out the ACLU's opposition, Skarin recruited Richard Winger, the ballot access expert blogger Ken Santema cited yesterday in contending that SB 69's February deadline may violate the Constitution. Testifying by phone from out of state on the kind indulgence of committee chairman Senator Tim Rave, Winger said that the Supreme Court has held that states must allow new parties to form in the spring of an election year. He noted that the Republican Party formed in July 1854 in response to the Kansas-Nebraska Act passed that spring. Winger said South Dakota is the only state that requires new parties to petition for status before the primary elections. He said there is no need for new parties to form before the primaries.

Winger and Skarin did not ask the committee to reject Senate Bill 69 or even any portion of it. They asked instead that the Legislature add language moving the petition filing date for new parties back to a more reasonable and Constitutional summertime date and allow new parties to nominate their candidates at convention. Neither had a formal amendment fleshed out to present to the committee this morning, but Skarin said she could have a proposal to senators by the end of the day.

Building on the ACLU's point about ballot access, Senator Bernie Hunhoff (D-18/Yankton) said the February deadline could make it much harder for legislators to help their parties recruit candidates. It's hard enough getting people to run, said Senator Hunhoff. Move that recruitment period to the holidays and the heart of Session when legislators are busy in Pierre, and even more ballot slots may go unfilled. Senator Hunhoff proposed that State Affairs defer SB 69 to allow a couple days to draft legislation that would cover the ACLU's concerns and perhaps create a provision to allow party chairs to fill ballot slots left empty at primary filing time.

When Senator Hunhoff asked her if such a proposal would complicate the election process at all, Secretary Krebs mentioned that parties right now can recruit placeholders to achieve the same end but said she'd have to check with her staff to see if they could think of any complications.

Senator Corey Brown (R-23/Gettysburg) said deferring the bill wouldn't change the indigestion he was feeling over Senator Hunhoff's proposal. Senator Brown said he finds the whole placeholder concept "abhorrent," and he didn't sound any more enthusiastic about letting party chairs pick nominees for blank spots. He also seemed uneasy about letting new parties nominate legislators at convention, as if facing an opponent selected by just a handful of his neighbors was an affront to democracy.

Chairman Rave, sounding a bit irked to have spent 50 minutes on this one bill, nonetheless urged and the committee agreed to defer SB 69 to Friday, when he promised to handle the bill briefly (translation: if you've got amendments, Bernie, they'd better short and sweet).

Senate State Affairs felt no need to delay SB 69's companion legislation, SB 67. That bill, which would set the second Tuesday in March as the deadline for filing court challenges against nominating petitions, drew no opposition and moves to the Senate floor.

But proceed carefully, Senate: SB 67 and SB 68 (which passed Senate Local Government this morning) only makes sense if SB 69 passes without amendment to its petition submission deadline of the last Tuesday in February. Make changes to SB 69 without changing SB 67 and SB 68, and you'll have a statutory spaghetti spill on your hands. (Remind me, Board of Elections, why we didn't write all these changes into one bill?)

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Libertarian blogger Ken Santema finds a new glitch in the petition reforms proposed by the state Board of Elections. He says Senate Bill 69, which moves the primary petition circulation period up one month to December 1 to the last Tuesday in February, violates the constitution by also setting the deadline for filing petitions to form a new party on that last Tuesday in February.

For details, Santema turns to Richard Winger at Ballot Access News:

These state officials probably don’t remember that in 1984, South Dakota’s Attorney General and Secretary of State admitted that a February petition deadline for a newly-qualifying party is unconstitutional, and the legislature then moved that deadline to April. This admission was made after the South Dakota Libertarian Party sued the Secretary of State. That case is reported at 579 F Supp 735 (1984). However, the only decision the judge had to make in that case was that the wording on the party petition was unconstitutionally restrictive. The judge didn’t need to adjudicate the part of the case that challenged the February deadline, because the state admitted it was too early [Richard Winger, "South Dakota Bill Moves Deadline for Newly-Qualifying Party Petition from March to February," Ballot Access News, 2015.01.20].

We bumped that deadline back from last Tuesday in April to last Tuesday in March in 2007.

Whether case law actually prohibits the earlier February deadline for party-formation petitions, Senate Bill 69 and the other bills in the petition reform package do citizens' opportunity to get themselves and their parties on the ballot. Mr. Santema says that disadvantage is enough to sink the whole reform package in his book:

I still have more research to do on this topic. But right now it appears the burden placed on ballot access in SB 69 overwhelms any good intentions of the bill. Yes, the nominating petition procedures in South Dakota need to be overhauled. However at this time it appears the wrong path is being taken. As a short-term fix maybe amending the bill to remove the new restrictions on newly-qualifying parties would be appropriate. But it might be time to realize that true reform may not be possible during the 2015 legislative session. Instead perhaps a workgroup or summer study should be formed to take a deep look at election law in SD and in other states for a comparison. Then come to the 2016 legislature with a comprehensive solution that would fix the problems experienced in the 2014 election while concurrently ensuring the first and fourteenth amendment protections are properly observed [Ken Santema, "Ballot Access Issues with SB 69," SoDakLiberty, 2015.01.20].

If we need petition reform, perhaps this question of ballot access makes my five amendments, including moving the deadline to the first Tuesday of March, all the more essential to passing the current package of legislation. We can't move the petition deadline back to April, since federal law demands we have absentee ballots ready for military voters 45 days before the primary. We could adopt the Lanny Stricherz plan to move the primary into summer so we could circulate petitions in May.

But if we can't move dates, then the best we may be able to do is make petitions electronic (complete with official circulators' tablet apps and online signatures!) so that we can submit petitions the day before ballot printing and instantly check signatures against the voter registration database. (Given that Secretary Krebs pulled out the wires on the campaign finance reporting system this morning, now might not be the time to suggest a whole new electronic form submission system... but I'm willing to take my chances! iPetitions, Secretary Krebs! What do you say?)

The Senate Local Government Committee hears Senate Bill 68 tomorrow, Wednesday, at 7:45 a.m. Central. Senate State Affairs takes up the rest of the petition reform package, SB 67 and the troubling SB 69 shortly afterwards, at 10:00 a.m.

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Secretary of State Shantel Krebs and the Board of Elections have sent the South Dakota Legislature three bills to reform the candidate petition review process. The three bills work as a package and must all be passed together to work.

Senate Bill 67 establishes the second Tuesday in March as the deadline for filing any challenge to a nominating petition for a primary election in circuit court. SB 67 fast-tracks any such challenge in circuit court. It then requires anyone challenging a circuit court ruling on a challenge to file their appeal with the Supreme Court within ten days of the lower court's order.

Senate Bill 68 requires the Secretary of State to review every nominating petition for a statewide candidate by reviewing five percent of the submitted signatures by random sample, similar to the process the Secretary of State currently carries out for every ballot measure petition. SB 68 requires the Secretary of State to notify candidates of the results of the review within five days of completing the review.

Senate Bill 69 is the messy one. This bill moves the petitioning dates for primary elections back one month, from January 1 through the last Tuesday in March to December 1 through the last Tuesday in February. Independent candidates also get to start circulating on December 1, but they keep their filing deadline of the last Tuesday in April. New political parties must also submit their petitions for recognition one month earlier, on that last Tuesday in February instead of the current last Tuesday in March.

In addition, Senate Bill 69 eliminates the late-arrival exception for petitions sent by registered mail and postmarked by the petition deadline; under this bill, all petitions must be in the Secretary's hands by the deadline. SB 69 moves the deadline for nominating petitions in special Congressional elections up from 45 days to 65 days before the special election. SB 67 addresses the Myers-Hubbel-Collier conundrum and explicitly allows an independent candidate for lieutenant governor to withdraw and be replaced.

I appreciate the Election Board's effort to require the Secretary of State to do her job better than her predecessor in protecting the integrity of the ballot from fraudulent petitioneers. However, this tripartite reform is focused entirely on operations at the top and does nothing to help the grassroots participate in elections and the petition process.

First, let's deal with the petition review and challenge process. These reforms do nothing to make petitions more accessible to citizens who want to review nominating petitions. When I led a group that challenged fake U.S. Senate candidate Annette Bosworth's nominating petition, the Secretary of State's office charged $2 per page, which brought the cost of obtaining Bosworth's petition to $452. Effectively reviewing petitions requires matching signatures with the statewide voter registration file, for which the Secretary of State's office charges $2,500. Grassroots reform would take steps to make petitions and the voter registration file more easily available to citizens. Nominating petitions should be posted online for all interested and connected citizens to review. The Secretary of State should reduce the cost of the voter registration file or, as a compromise, modify the Voter Information Portal so that grassroots petition reviewers can look up individual voter registration records by entering the voter's address (information that petitions require) instead of the voter's birthdate (information that petitions do not and should not require).

Furthermore, while these bills give the Secretary of State more time to review petitions, the bills seem oblivious to the practical impact of the changes on the timeframe for citizen action.

Let's look at these reforms in the context of the challenges to the Bosworth petition last year. Bosworth submitted her petition at the last minute on March 25. My team had to submit its challenge to the Bosworth petition to the Secretary of State by April 1. Under these reforms, we'd have had the same week. As rational actors in the political marketplace, knowing the Secretary of State was carrying out the random-sample review required by SB 68, we might have wanted to save our money and see if the Secretary would do our work for us. But we could not wait and see, because our five-day clock would still start ticking when the petitions were submitted, not when the Secretary certified them. Citizens are caught in a bind, having to commit to an expensive challenge process that may turn out to be redundant if the Secretary's random sample finds the same errors the thorough citizen review would find.

Plus, consider that for me to challenge the Bosworth petition under the SB 69 calendar, I'd have been reviewing petitions during the last days of February and the first days of March, the height of the Legislative session. I'd have had to drop my coverage of bills in Pierre and focus on the petition challenge. I can imagine that other political activists (and candidates?) would find this overlap as burdensome as I would.

Rep. Steve Hickey's court challenge to Bosworth's petition would fare no better. Rep. Hickey's challenge last year died because there was not time between the Secretary's rejection of my challenge on April 5 and the ballot-printing and delivery due date of April 16 for the court to hear the challenge. Under SB 69, Rep. Hickey would have had all of March and early April to file his court challenge. Hickey could have spent March gathering evidence and legal advice. He could have filed suit on April 1. Judge Mark Barnett could have scheduled a hearing for April 7, expedited a ruling, and the Secretary of State would have had plenty of time to finalize the ballot by April 16.

But Senate Bill 67 inexplicably shuts the door on that opportunity for oversight. The second Tuesday in March gives future court challenges no more time to launch than Rep. Hickey had last year.

As a minor complaint, Senate Bill 69 chips away at the time citizens have to get on the ballot. Moving the circulation period up one month reduces the time candidates have to circulate. February is two or three days shorter than March; in 2016, SB 69 would take away one full week of circulation time. Circulating petitions during Christmas shopping sounds like a bad idea, as people are too absorbed in their hectic shopping to pay as much attention to clipboard-carrying circulators. Circulating petitions during the Christmas break seems downright tacky. SB 69 adds a really crappy month for petitioning by taking away March, a month that offers more daylight and more chance of springtime weather for marching door to door and catching folks on the sidewalk at the post office.

Senate Bills 67, 68, and 69 try to address weaknesses in the petition review process. However, they ignore the role of citizens in the process and close more doors than they open. To make this reform work, let's make five key changes:

  1. In SB 67, change the court challenge deadline to April 1 or drop the deadline altogether, allowing the ballot-printing deadline to continue setting the effective deadline.
  2. In SB 67, count the five-business-day deadline for submitting challenges to the Secretary from the day the Secretary certifies a petition.
  3. In SB 68, add a requirement that the Secretary post online all petitions and itemized reports on the results of each random-sample verification (i.e., show which signatures were checked and which, if any, were found invalid).
  4. In SB 68, include a provision requiring the Secretary to make voter registration records searchable online by name and address.
  5. In SB 69, move the petition submission deadline to the first Tuesday in March.
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Shantel Krebs may not be an awful Secretary of State, although Jason Gant has lowered the bar so far that we'd probably cheer a trained chinchilla. She's hiring experienced professionals, not political cronies, to help her run elections. She's signaled her intent to seek more authority for the Secretary of State to do her job and review petitions for illegal signatures.

But it remains to be seen whether Krebs will be able to overcome the partisan motives that drove her candidacy and enforce election law fairly. Former Secretaries of State Sam Reed of Washington and Phil Keisling of Oregon say there has been an explosion of partisan fundraising in secretary of state races:

In the 2014 election cycle, two dozen secretary of state offices were in play, and most of these positions included the duties of chief elections officer. As detailed by Politico, the 2014 election cycle also saw the rise of well financed national political action committees, on both the right and the left, focusing on offices once predominately viewed as sleepy administrative backwaters [Phil Keisling and Sam Reed, "The Troubling Partisanization of Elections for Secretary of State," Governing, 2014.12.10].

This increased partisan attention to secretary of state races makes it harder for our election officials to play umpire:

We're certainly not saying we made every call correctly. But we each felt a certain freedom to call it as we saw it without anywhere near the worry that today's chief elections officers will have about the millions of dollars they'll need for their own re-election campaigns. In the end, we'd argue that voters in every state should want exactly these kind of independent judgments from their chief elections officials.

Our nation's secretaries of state certainly can't escape the hurly-burly of politics altogether; with over 20 years of elected statewide office between us, we're not naïve about that. But election administration is a core function in our democracy, and voters rightfully require accountability for the integrity and smooth operation of our voting process [Keisling and Reed, 2014.12.10].

Krebs's campaign does not epitomize the big-money problem over which Keisling and Reed rightly worry. Out-state PACs constituted a single-digit percentage of Krebs's relatively modest campaign kitty. Krebs didn't need the help: she may have spent barely $100K on a statewide race against late-comer opponent Angelia Schultz, who spent little more than $5K.

I'm also not sure how we would de-partisanize the Secretary of State's race. We could amend statute to make that campaign non-partisan like judges' races, but Republicans and Democrats who recognize the value of that office would still find a way to place their preferred candidates on the ballot and fund their campaigns.

It seems the best way to ensure Krebs's fair and faithful exercise of her duties is to subject her office to public pressure and scrutiny. Let's make sure her professional staff live up to their reputations. Let's press Secretary Krebs to protect voting rights for all South Dakotans and review petitions avidly and equitably. We have high expectations, Secretary-Elect Krebs. Leave your partisan hat at the door, and let's run elections right.

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Clip from Shantel Krebs campaign banner, Twitter, 2014

Thus riseth the liberal colossus from the corn...

Here comes Shantel Krebs proving she's no conservative. Fresh off her victory in Tuesday's election for Secretary of State, the outgoing Sioux Falls legislator is promising all sorts of new laws (pause right there: that's the definition of liberal, right?) to change the candidate petition process:

Krebs also has ideas to improve the way candidates petition for office following several issues that came up during this year's campaign cycle.

"Is there a way that the Secretary of State has more authority in reviewing those signatures?" Krebs said [Ben Dunsmoor, "New SD Sec. Of State Addresses Low Turnout & Petitions," KELOLand.com, 2014.11.06].

More authority for government: that's liberal, right?

Krebs says one of her top priorities is working with the bipartisan Board of Elections to give the Secretary of State more authority in reviewing nomination petitions for candidates who are trying to get on the ballot.

..."So it'd be similar wording as the statute for initiated measures and referendums, where we actually can review by a random sampling of five percent is a number we use," Krebs said [Dunsmoor, 2014.11.06].

Now I like the idea of more Secretarial oversight of nominating petitions. But I'm liberal, and I like it, so that means if Krebs likes it, she's liberal! Aaaaaaahh!

Krebs also wants to increase voter turnout through the classic liberal tactic of infiltrating public education with her devious schemes:

Krebs says she'll work to promote the Kid's Voting program more in schools.

Krebs says if students are talking about the issues in class, they'll also be talking with their parents about the process at home and encouraging them to vote.

"I'm going to make a concerted effort to get back and re-engage in the school systems and be there for the encouragement, and the enthusiasm, and the excitement of the process," Krebs said [Dunsmoor, 2014.11.06].

Everyone knows my teaching French is really a cover for turning kids into socialists. And everyone knows that increasing voter turnout is a surefire way to promote liberal policies, because non-voters, like reality, have a well-researched liberal bias.

More laws, more government authority, more liberal policies—that's Shantel Krebs! Who says liberals can't win South Dakota elections... and end up in charge of those elections?

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Democrat Angelia Schultz hits the Intertubes with the three-point promise she'll uphold if you elect her Secretary of State:

Schultz promises the opposite of the ills wrought by the Republican regime in this important office over the last four years: she won't use the office for political favors or patronage; she'll fight for equal voting rights for everyone (Sec. Gant has lately come around on this issue); and she'll restore integrity to our elections. Well summarized, candidate Schultz!

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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.

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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."

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