I am outraged that Associated Press, that Sioux Falls paper, KSFY, CNN, NBC, and CBS have declared winners in South Dakota's mid-term election while citizens are still voting. So is Secretary of State Jason Gant:

SOS Jason Gant tweet, 2014.11.04.

SOS Jason Gant tweet, 2014.11.04.

CNN declared a winner while Shannon County voters were still voting, in violation of CNN's own election night projection policy.

Update: Secretary Gant expresses further outrage at other media, including Fox News, for breaching the public trust:

Screen Shot 2014-11-04 at 20.49.03Another commenter mentions NPR is guilty, too... while KELO-AM's Greg Belfrage appalling decides to blame the election worker, not the media:

Screen Shot 2014-11-04 at 20.50.37

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Legislator-in-waiting Lee Schoenbeck gets to shout "Wrong! Wrong! Wrong!" in my ear all night.

On Sunday, the Aberdeen American News ran an article headlined, "Secretary of State: Elliott Residency Valid." Elisa Sand's article said that Secretary of State Jason Gant found no violation in Democrat Burt Elliott's use of an Aberdeen address for his voter registration and District 3 House nominating petition. Republicans hollered that that headline was misleading; I defended the headline.

Mr. Schoenbeck, who is keenly interested in keeping Elliott from taking a seat in his House, sends me a link to this correction from the Aberdeen American News:

Headline wrong: South Dakota Secretary of State Jason Gant said District 3 House candidate Burt Elliott’s election petition met all requirements for Elliott to run in the district. The headline suggested Gant could determine the validity of Elliott’s residency, when it should have referred to his petition.

We regret the error ["Setting It Straight," Aberdeen American News, 2014.10.29].

As I said in an e-mail to Mr. Schoenbeck, Arrgghh!

I think the Aberdeen paper caved too easily... but the Aberdeen paper has called it, and I cede the point. The headline should have read, "Secretary of State: Elliott Residency Valid for Nominating Petition."

My friend Elisa Sand should now follow up with an in-depth analysis of the Schoenbeck argument, the Heinemeyer precedent, and the implications for South Dakota's thousands of RV voters.

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Pat Powers and the South Dakota Republican Party continue to scream about Burt Elliott's questionable residency status. I continue to find the question of where we allow a citizen to register to vote practically and Constitutionally important: should the Schoenbeck argument that Elliott committed perjury by declaring District 3 his voting residence also convict the thousands of full-time RVers and college students who spend a majority of the year somewhere other than the address on their voter registration cards?

Enter former Powers patron Jason Gant, our Secretary of State. He says as far as he's concerned, Elliott has committed no foul:

The facts are simple. Elliott’s longtime residence is south of Aberdeen near the intersection of South Dakota Highway 10 and 137th Street, a house that sits within the boundaries of District 2, but not far from the boundaries for District 3. Legislative district boundaries were redrawn after the 2010 census and before the 2012 election. When Elliott filed his petition as a District 3 representative, however, an Aberdeen address in the 1700 block of South Fourth Street address was listed.

It’s an address that matches with Elliott’s voter registration, and Secretary of State Jason Gant said in order for a candidate’s petition to be valid, his or her address on the petition must match the address on his or her voter registration card. The candidate’s petition must also have the appropriate number of valid signatures.

Since Elliott’s petition met those requirements, Gant said, he was certified as a candidate.

“Everything is accurate based on that,” said Gant, a Republican.

If there’s a desire to pursue the legality of the issue, Gant said, that issue would have to be challenged in court [Elisa Sand, "Secretary of State: Elliott Residency Valid," Aberdeen American News, 2014.10.26].

Hmmm... when Secretary of State Jason Gant validated a nominating petition of a Republican Powers liked, Powers was more than happy to trumpet that candidate's propaganda. Powers also poo-pooed further court challenges, telling those he called axe-grinders to settle for changing statute next session. But now faced with his pal Gant's validation of a less-favored Democrat's petition and with the argument from the Aberdeen American News editorial board that Elliott's opponents should settle for changing voter registration laws in the 2015 Legislature, Powers goes purple with rage. He misportrays the editorial, elides Secretary Gant's reasoning, and just goes on shouting, impervious to the fact that law and his patron are not on his side.

District 3 voters are now well aware of Elliott's residency situation. Elliott has a right to be on their ballot, and they have a right to elect him and send him home, wherever home may be. Legislators upset by Elliott's opportunity should start crafting their voting-rights reform bills for 2015... and prepare to be watched closely by students, RVers, and all of us interested in ensuring the right to vote of every person who calls South Dakota home.

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The early voting stations for American Indians in South Dakota aren't running too smoothly. Fall River County auditor Sue Ganje set up the Shannon County station in a five-foot-by-ten-foot entryway, making it hard to process all the Indian voters who were coming to exercise their Constitutional rights. Ganje's response (so I hear from someone who's been on the scene): those Indians need to exercise their Constitutional rights more slowly.

Auditor Ganje has also had the sheriff out to the polling station in Pine Ridge twice. Ganje says she received complaints that Indian voting rights group Four Directions, which has fought for years to establish early voting stations on the reservations, was coercing voters. Shannon County Sheriff Jim Daggett thus cruised out to see what the fuss was about. He found no fuss, of course, but take a moment to envision a sheriff summoned by a white county auditor to stand at the door of a polling place in front of American Indian voters. What was that you were saying about voter intimidation, Susan?

Enter the unlikely hero, Secretary of State Jason Gant. Our Secretary of State has fought these early voting stations, but yesterday, he evidently came to their assistance:

Four Directions officials were upset that the early polling place in Pine Ridge was set up in a small entryway. After complaints to Secretary of State Jason Gant, a new, larger polling place was found Thursday.

Bret Healy, a spokesman for Four Directions, complimented Gant for personally investigating and finding a new location.

“This was a public official doing the public’s business in a very admirable way,” Healy said [Jonathan Ellis, "Voting Accusations Fly in Reservation Areas," that Sioux Falls paper, 2014.10.24].

I find it hard to put Jason Gant and admirable in the same quote, but there they are. The Secretary can't tell the sheriff to stay the heck out of Pine Ridge, but he appears to be doing his job to make voting run as smoothly as possible for all South Dakotans.

Now if he could just straighten out Buffalo County, which has reneged on its promise to open a satellite voting station:

Commissioners last year said they would establish an early voting center in Fort Thompson if they could do so using Help America Vote Act money. Elaine Wulff, Buffalo County’s auditor, said the county has about $20,000 in HAVA [Help America Vote Act] money.

But Wulff said the commissioners didn’t want to use the county’s HAVA funds, but instead wanted to use state HAVA funds. When the state funds weren’t available, the commission decided not to open an early vote center in Fort Thompson.

“We’re really short of funds, and we could not afford it,” Wulff said, adding that it would cost the county about $200 a day.

But Healy said the county was treating its allotment of HAVA money as if it belonged to the county. He also criticized the commission for “changing the benchmark after the fact,” and he said the commissioners were not the type of people he would trust to buy cattle from [Ellis, 2014.10.24].

Buffalo County has HAVA money in its pocket, but it's refusing to use that money for it's intended purpose. Secretary Gant, maybe you need to swing through Fort Thompson on your way back to Pierre.

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Secretary of State Jason Gant is apparently determined to go out flipping the bird at American Indian voters. Questioned about four Indian voters' lawsuit against Jackson County demanding a satellite early-voting station in Wanblee, Secretary Gant asserts the following:

“We are 100 percent equal across the state,” Gant said Thursday. “Every South Dakota county has at least one location within their county borders where people can absentee vote face-to-face.”

...Residents can now request a voter-registration form at the courthouse or go online and mail it to the county auditor’s office. Monday, Oct. 20, is the last day to register to vote in the Nov. 4 election.

Absentee ballots can be requested up to 5 p.m. on Nov. 3. Absentee ballot requests are available online, but they must be notarized before they are mailed to the auditor. Completed ballots can be returned by mail.

“That’s the same as it is in every other county that has a county seat,” Gant said [Andrea Cook, "Jackson County Being Pressured to Open Satellite Office for Voters," Rapid City Journal, 2014.10.12].

Secretary Gant not only speaks falsehood but contradicts the position adopted by the Help America Vote Act task force on which he served last winter, that certain geographic and economic conditions exist which disadvantage American Indian voters and justify the establishment of satellite early voting stations to provide American Indian voters equal opportunity to register to vote and cast early ballots. In May, Gant himself, like every other member of the state Board of Elections, voted for the amendment to the state HAVA plan that recognizes those criteria.

The state HAVA plan cites Jackson, Dewey, and Buffalo counties as places where those criteria for unequal voting access that can be rectified by satellite early voting stations. The Poor Bear et al. v Jackson County complaint offers the specific Census data showing that Indian voters in Wanblee face barriers of poverty, distance, and historical racial discrimination to voting.

Rez Tour 2014 Get-Out-the-Vote bus, headed for Pine Ridge Thursday!

Scariest words in Jason Gant's world: "We're from the Rez, and we vote." Rez Tour 2014 Get-Out-the-Vote bus, headed for Pine Ridge Thursday!

But hey, with Mike Rounds on the ropes, I guess Secretary Gant better make sure he wraps up his disastrous reign over our elections with one more favor to his disappointed Republican friends and keep ballots out of as many Indian hands as he can.

Dustina, Chase, friends, march that Treaty Rights Rally past Secretary Gant's office this noon, then get that Indian get-out-the-vote bus and lots of voter registration cards and ballots down to Wanblee, pronto!

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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.

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."

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Scott Ehrisman notices the latest evidence of Jason Gant's unfitness for the office of Secretary of State. In response to Independent gubernatorial candidate Mike Myers's claim that Secretary Gant is using his office to advance partisan interests, Secretary Gant snorts churlishly,

Absolutely not—that's absurd and pathetic. That's just the sad attempt of publicity [Jason Gant, quoted in Tess Hedrick, "Michael Myers Intends to Sue Secretary of State Jason Gant," KSFY.com, 2014.07.29].

Churlish is Leo Kallis's word for Gant's retort. Kallis says Gant's snarkery (that's my word) proves once again that "he's a partisan hack, not a statesman."

Now granted, Myers did call Gant a "hit man for the Republican machine in Pierre" first. As a blogger, I have some obligation to respect folks who can dish back as good as they get.

But Jason Gant isn't a blogger. For five more months, he is the Secretary of State, the chief election officer of South Dakota. More than any other citizen of our state, the Secretary of State has an obligation to speak impartially of every candidate on the ballot that he prints and distributes and counts.

The National Association of Secretaries of State includes this statement of ethics in its constitution:

The role of Secretary of State is a noble calling, and carries a high ethical mandate and a conscientious duty to our democracy.  Accordingly, Association members commit to the following:

  1. Adhering to the highest standards of excellence that will nurture and maintain the public trust;
  2. Placing loyalty to state and federal constitutions, the law, and ethical principles above private or political gain; and
  3. For those Secretaries of State who serve as their state's chief elections official, practicing fair and unbiased election administration that recognizes each eligible citizen's right to cast his or her vote, and for that vote to be counted with the highest regard to constitutional foundations [NASS Constitution, Article III, as amended 2008.02.10].

Calling candidates names doesn't nurture public trust, and it doesn't look unbiased.

When he leaves Pierre, Citizen Gant can guest-blog for his former flunky Pat Powers and call Myers and Kallis and Stan Adelstein and me and everyone else who has challenged him all the names he wants.

But a sitting Secretary of State who calls a standing candidate absurdpathetic, and sad breaches the public trust in his impartiality.

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