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.


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.)


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.


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.


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.


Secretary of State Jason Gant had predicted that turnout in South Dakota's primary would be a better-than-average 50%. Statewide, turnout was 20.5%, about the same disappointing number in the first primary Gant ran in 2012. The only counties in which turnout broke 50% were Harding and Sully. A majority of counties (40 out of 66) failed to break 30%. The most populous counties and the most Indian counties generally had the lowest turnout:

Why was turnout so dismal? Gant says thunderstorms and frontrunners kept people from the polls. I can't speak to South Dakota hardiness in the face of some wind and rain, but when I grab precipitation totals for the last 24 hours for the 47 counties with reporting stations and compare them to total voter turnout, I get a correlation of –0.036, which means there isn't one.

Comparing the turnout in the Republican and Democratic races chips away at Gant's hypothesis. Most people paying attention knew that the Republicans had two frontrunners coasting to victory: Mike Rounds scored my predicted 55%, with Larry Rhoden and Stace Nelson nowhere close at 18%. Dennis Daugaard beat Lora Hubbel 4 to 1. Republicans managed 31.4% turnout statewide. Democrats had the only interesting statewide race, with none of us sure whether Joe Lowe's early start and passion would beat Susan Wismer's accountantly reserve and party connections. Wismer prevailed 55.5% to Lowe's 44.5%. Turnout among Democrats and the Independents we invite to our primary was 11.0%.

So what's the real reason turnout was low? Perhaps we should consider the obvious: Secretary Gant runs crappy elections and wants less turnout, especially among folks who don't vote Republican. I have received more than one report that election workers were not initially handing Democratic ballots to Independent voters. One commenter tells me his Independent wife was explicitly and repeatedly denied a Dem ballot. Secretary Gant apparently either failed to make sure county officials were training election officials to follow the rules or chose to nudge Independent participation downward by requiring Indies to know they could have a Democratic ballot rather than handing them all ballots to which they had a right to mark as the default action.

Voters also appear to have trouble getting correct information about where to vote. Mark Millage complained to the Minnehaha County Commission yesterday that he received a postcard from Minnehaha County Auditor Bob Litz showing the wrong legislative district and wrong polling place. The Secretary of State's office also had the wrong data. Millage and his wife went to what they knew was the correct polling place but found they weren't on the rolls. They ended up having to cast provisional ballots.

Minnehaha County Commissioner John Pekas says the Millages' problems are more widespread than they should be:

...Pekas said Millage's story is similar to complaints he has heard about the Secretary of State's office sending post cards to voters that incorrectly listed addresses for polling places.

"There are some grave concerns about the quality of information being disseminated for voting places," Pekas said. He called it a challenge at both state and local levels. "When you go to vote, it should be correct. We need to take a good hard look at that," Pekas said [Peter Harriman, "Voter Expresses Frustration to County Commission," that Sioux Falls paper, 2014.06.03].

Secretary Gant responds that the solution is for Minnehaha County is to get on board with his wonderful voting centers, which allow voters to drop by the polling place of their choosing. But networked voting centers don't solve the problem of the auditor and the Secretary placing voters in the wrong district and not handing them the right ballot.

Minnehaha County Commissioner Jeff Barth also raises the concern that voting centers have a net negative effect on turnout. Gant's project may give mobile folks more choices as to where to vote. But folks who don't have reliable transportation don't benefit from voting centers when they consolidate precincts and eliminate the nice little polling station they used to have just four blocks from their house.

And don't even get me started on Gant's partisan hackery and petition errors, which have allowed an illegitimate candidate on the ballot and undermined public confidence in the election process as a whole.

Secretary Gant has made explicit efforts to make it harder for South Dakotans not of his political persuasion to vote. Errors in elections have persisted under his regime, as shown by the missteps in Minnehaha County.

South Dakota Democrats, as we consider how best to deploy our resources for the general election, consider that the most important offices we fight for must include Secretary of State and county auditors. We have three weeks until convention to find a solid Secretary of State candidate to undo the errors and voter suppression wrought by the Gant regime, ills likely to continue under either Gant's lieutenant Patricia Miller or her challenger Shantel Krebs. Where we have races for county auditor (Brown, Day, Hutchinson, Marshall, Minnehaha, Moody, and Yankton), we must get behind reformers like Minnehaha County Democrat Tony Bartholomaus.

If Republicans like Gant are trying to depress voter turnout to protect their political interests, yesterday's dismal primary turnout suggests they are succeeding. Democrats, winning back the offices that run South Dakota elections would be an important step toward restoring public confidence and interest in voting.


Mary Perpich successfully challenged Clayton Walker's nominating petition, ending his aspiration to be an Independent candidate for Senate. Secretary of State Jason Gant agreed with Perpich that over 1,600 signatures, nearly half of those Walker submitted, were bogus, leaving him 1,400 shy of the 3,171 Indies need to make South Dakota's statewide ballot.

There's no way Walker can recover enough of those signatures in any legal challenge. He outright lied, making up names like Dusty Cover and Cherry Drop. Walker's only resort now is to try throwing out Perpich's challenge on a technicality. Mr. Montgomery reports that Walker is arguing that Perpich filed her challenge too late. He says that state law requires petition challenges be filed within five days of when the candidate files the original petition:

Within five business days after a nominating, initiative, or referendum petition is filed with the person in charge of the election, any interested person who has researched the signatures contained on the petition may file an affidavit stating that the petition contains deficiencies as to the number of signatures from persons who are eligible to sign the petition. The affidavit shall include an itemized listing of the specific deficiencies in question [SDCL 12-1-13].

Walker submitted his petition on the deadline date of April 29. Secretary Gant did not certify the petition until May 1. Perpich submitted her challenge May 8, seven business days after Walker filed his petition with the Secretary of State, five business days after the Secretary of State certified the petition.

When I challenged Annette Bosworth's illegitimate Senate nominating petition last month, I wondered about exactly that statute and the challenge timeframe it species. Bosworth submitted her petition on March 25, but Secretary Gant approved it on March 26. To be safe, I operated on the assumption that the clock started ticking when the petitions were "filed with" the Secretary. However, the Secretary's office informed me during the process that they start the clock ticking when the Secretary certifies the petition.

Secretary Gant consistently applied that same standard to the Walker challenge:

"Mr. Walker is wrong," Gant said in an email. "Petitions are received on a particular day and they are filed on a particular day. The difference is that received is the date they are received into the office. Just like the deadline for petitions to be received by the SOS office on a particular day. The filed date is when the candidate or issue is approved or denied access to the ballot... The challenge time frame can only begin once the petitions are filed by the office. That determination of approval or denial of the ballot is what allows for an interested party to challenge the decision of the SOS."

Walker's petitions, Gant wrote, were "received" on April 29.

"On May 1, I filed his petitions as approved for the ballot," Gant said. "Five business days after May 1 is May 8, the date the challenge was received" [David Montgomery, "Walker vs. Gant on Petition Challenge," Political Smokeout, 2014.05.21].

It almost sounds like Secretary Gant is confusing with and by. But in SDCL 12-1-13, filed appears to mean not the action of the candidate handing the petition to the Secretary, but the action of the Secretary or his deputy formally placing that petition in the file marked Certified.

That standard makes sense: no official petition really exists for the public to challenge until the Secretary certifies it. Secretary Gant took a strangely long two days to review and approve Walker's petition; it would be unfair to deny challengers those two days to conduct their challenge or to require that challengers engage in the expense (money and time) of a challenge before they know whether the Secretary himself will spot errors and render a public challenge unnecessary.

Walker's only hope of reclaiming his spoiler status thus rests on one verb and one preposition against a consistent, logical, and fair standard for public review. I think Walker loses.


Rounds for Senate staffer Justin Rollins got really excited about casting his primary ballot early yesterday. He took a picture of his marked ballot and posted it on Twitter to encourage all of his followers to vote for Mike Rounds and Dennis Daugaard, "Two great South Dakotan's." Aside from misusing the apostrophe (hey, my typing fingers slip and do it, too), no big deal, right?

Well, Jonathan Ellis points out that displaying your marked ballot violates SDCL 12-18-27:

Marked ballot not to be shown--Folding for deposit in ballot box. No person may show a ballot after it is marked to any person in such a way as to reveal the contents of the ballot, or the name of any candidate for whom the person has marked a vote. Nor may any person solicit the voter to show the voter's ballot. Immediately after marking the ballot the voter shall fold and refold the ballot, if necessary, leaving the official stamp exposed [South Dakota Codified Law 12-18-27, passed 1939, amended 1974, 1976, 1990.].

Rollins tells Ellis he had no idea South Dakota outlawed sharing images of marked ballots. Neither did I. Upon being informed of the law, Rollins deleted the photo tweet.

This issue came up nationwide during the last election, when folks on both sides proudly and propagandistically posted images of their ballots on their social media accounts. Such laws are meant to inhibit vote-buying:

[Boston Reporter David] Bernstein said that, after asking around, he’s come to understand that the law stems from the state not wanting people to buy votes. ”The idea being if someone was buying your vote, you’d take a picture to show that you voted for who they wanted you to vote for,” Bernstein said. “So you could see the thought behind it in that sense” [Nate Goldman, "That Photo Of Your Ballot You Posted On Social Media? It’s Against Mass. Law," WBUR, 2012.11.06].

One may also justify ballot-display bans on grounds of protecting the integrity of the polls. We prohibit electioneering activity at polling places, and taking a photo of your ballot may be construed as electioneering activity.

I see no ill intent in Rollins's ballot photo-tweet. I know I've taken photos of my ballot before (though I can't remember if I posted such photos or if I ultimately just kept them for documentation; I trust some ambitious reader will sift through my online trail to find out). But Rollins's ignorance of the ballot photo ban is worth noting considering his resume:

In the summer of 2010, Justin returned to South Dakota as campaign manager for Jason Gant for Secretary of State. Since the election, he has served as State Election Coordinator in the Secretary of State’s office, serving as the office’s point-of-contact for campaign finance issues, as well as school and municipalities election law [SDGOP, press release, 2011.11.15].

The man who had no idea this election law existed was hired by Secretary of State Jason Gant to explain election law to schools and municipalities. South Dakota, that's the quality in government we got by hiring Jason Gant as our Secretary of State.


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