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.

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,", 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?


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!


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.


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."


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.


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?


...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.


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