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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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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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.

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Northern Plains News reports that conservative watchdogs True the Vote finds that more than 36,000 names on South Dakota's voting rolls may be duplicated in other states.

May be. True the Vote offers no evidence that any of these duplicate names have translated into duplicate votes. It offers no evidence of how many of those duplicate names represent voters who have indeed moved from one state to another, have honestly registered to vote in their new abodes, and have no intention of casting bogus ballots in their previous states or perhaps even any idea that registering in their new states did not automatically remove their names from their old states' rolls. It offers no evidence of the reliability of its confidential voter database.

And it offers no evidence that these names haven't already been or soon will be purged from the voter rolls for inactivity. South Dakota's Secretary of State is a bumbler in many ways, but he's very effective at striking names from the voter registry. Since taking office, Secretary Gant has overseen a net reduction of South Dakota's registered voters of over 10,000. That's a 2% decline during a period when South Dakota's population has increased nearly 4%.

So you tell me which is the greater scandal: numerical assertions not tied to proof of real harm from a conservative group known for intimidating minority voters, or a Secretary of State who has disqualified more voters than he has registered and share's True the Vote's agenda of making it harder to vote?

(By the way, I guarantee, I am not among those duplicate names. My voter registration is up to date, accurate, and in one state only.)

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Tomorrow morning, the South Dakota Republican Party will choose its candidate for Secretary of State. Since my Democratic Party has not yet announced any candidate for perhaps the most contestable office on the ballot this fall, the SDGOP may indeed be picking the replacement for the beleaguered and bumbling Jason Gant. Should the party pick the woman who forced Jason Gant into the historic decision to not seek a second term, Senator Shantel Krebs? Or should the GOP pick the woman who has kept Gant's fat out of the fire for the last couple years, current SOS Pat Miller?

Former Senator Stan Adelstein wants his colleague Krebs:

...Shantel Krebs is a stickler for honesty. She is intimately knowledgeable on election law and election methods and procedures. In addition to that, Shantel, unlike Ms. Miller, has successfully operated and managed more than one business.

To the best of my knowledge, nowhere in the past have there been as many complaints from businesses about erroneous online filing, lack of confidentiality, and frankly general screw-ups as we’ve seen recently coming out of the Secretary of State’s office.

Republicans would do well to nominate someone who is in a clear position to clean up the messes in the Secretary of State’s office and restore public confidence in its competence and integrity.

If we don’t, the Democrats will [Stanford Adelstein, "Just Say No—to the Possibility of Four More Years of Jason Gant," A Way to Go, 2014.06.18].

I take Adelstein's point that Miller is stained by association with the current regime. But Krebs has given no indication that she would be any less inclined to use the office for partisan purposes than Secretary Gant has. Krebs has made clear she sees no problem with Indian voting rights in South Dakota, an issue where Gant has demonstrated a willingness to put protection of Republican margins above universal enfranchisement. She hasn't spoken out on Gant's failure to train election officials properly for this year's primary, a failure that may have denied some Independents access to the Democratic gubernatorial ballot. Krebs's announcement of candidacy last summer seemed to view the Secretary of State's office as a tool for maintaining Republican dominance as for serving the broader public interest.

Former Secretary of State Chris Nelson has also endorsed Krebs. Hearing often reasonable Republicans like Nelson and Adelstein endorse Krebs tempers my concerns about Krebs's partisan motivations somewhat.

But I'd still really, really, really rather have my Democrats come through with a quality candidate for Secretary of State. Given the scandals of notary violations, partisan influence, election errors, and petition fraud that have taken place in the last four years, South Dakota needs an informative and vigorous statewide conversation during the general election about the duties of the office of the Secretary of State, not a decision made by a few hundred delegates in Rapid City tomorrow.

Update 09:48 CDT (08:48 MDT for you conventioneers): I am remiss in not referring to Ken Santema's thoughtful and detailed assessment of the Secretary of State's race. A somewhat independent observer, Santema leans Krebs, preferring a little more distance between the new SOS and the current regime.

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Posts like these are probably why Jason doesn't return my calls....

Remember when Secretary of State Jason Gant said it's not his job to make sure elections run smoothly? Secretary Gant now offers a ridiculous excuse for failing to ensure the integrity of elections. Following the arrests of two former U.S. Senate candidates for filing bogus petitions, Secretary Gant tells us the law prevents him from checking the legitimacy of petition signatures:

Gant said all he can look at on candidates' petitions is whether they're complete -- rejecting signatures only for missing crucial information. It's only if an outside party challenges a candidate's nominating petitions that Gant can consider such major facts as whether a petition signer is a registered voter -- or even exists.

For example, Gant initially approved nominating petitions from Clayton Walker. Three weeks later he ruled that they contained almost 2,000 errors, including possibly hundreds of voters who don't actually exist.

Even if he had noticed the problems on Walker's petitions sooner, Gant said he couldn't have done anything about them until a challenge was filed.

"State law really puts all the responsibility to, as state law says, an interested party to go through and try and challenge any of those signature lines," Gant said [David Montgomery, "Gant: Officials Not Allowed to Check Petition Accuracy," Political Smokeout, 2014.06.05].

Once again, Secretary Gant misreads South Dakota law to excuse his own laziness. Let's review South Dakota Administrative Rule 05:02:08:00, which lays out the guidelines for accepting petitions:

When a petition is presented for filing, the person or governing board authorized to accept the petition for filing shall determine if it meets the following requirements for acceptance:

  1. The petition is in the form required by this chapter;
  2. The petition contains the minimum number of valid signatures, counted according to § 5:02:08:00.01. One or more invalid signatures on a petition section do not disallow other valid signatures on the section;
  3. Each section of the petition contains an identical heading and is verified by the circulator. The circulator may add the addresses of the petitioners and the dates of signing before completing the verification. The circulator may also add the printed name of the signer and the county of voter registration. Residence addresses may be abbreviated. The verification was completed and signed before an officer authorized to administer oaths;
  4. The declaration of candidacy contains the original signature of the candidate. Additional sections may have an original or photocopied signature of the candidate;
  5. If a petition is for a ballot question to be voted on statewide, the signatures were obtained after a copy of the text of the petition was filed with the secretary of state;
  6. The governing board or person authorized by statute to accept the petition shall, if requested, allow a petition circulator the opportunity to add missing information on the signature lines or circulator's verification on his or her petition provided the filing deadline has not passed; and
  7. Following the presentation of the petition for filing, names may not be removed from the petition.

Except for petitions to nominate candidates for school boards, the person who is authorized to accept petitions for filing need not check for voter registration of the signers. Petitions containing signatures in excess of the minimum number may be filed, but the excess signatures will be disregarded [SDAR 05:02:08:00].

Legal eagles, feel free to correct me. But the operative phrase here is "need not." This rule does not tie Secretary Gant's hands. It leaves them free to pick up the voter registration list or to leave it on the shelf. If Gant sees Dusty Cover, Cherry Drop, and Jeff Bridges on a petition, it's his choice whether to listen to his madly pinging B.S. detector and check the voter rolls or let the petition slide and pass the burden of investigation onto citizens, who have no way of knowing such evidence of crime against election law exists without paying the Secretary's office hundreds of dollars to obtain the petition and thousands of dollars to obtain a reliable voter registration list.

Only in Jason Gant's world do citizens have to pay Jason Gant so they can do Jason Gant's job.

Secretary Gant does not need to change the law to do his job. But if he's going to shirk and say citizens are the only ones who can do his job, he needs to change his office practices and make all petitions and voter registration lists public documents, available online, free of charge so we can all get that job done.

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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

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