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:
- 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.
- In SB 67, count the five-business-day deadline for submitting challenges to the Secretary from the day the Secretary certifies a petition.
- 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).
- In SB 68, include a provision requiring the Secretary to make voter registration records searchable online by name and address.
- In SB 69, move the petition submission deadline to the first Tuesday in March.