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.

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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."

25 comments

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.

4 comments

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.)

12 comments

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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