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.


Last week, Attorney General Marty Jackley said that folks interested in protecting the integrity of the ballot needed to talk to the judge, not to him. I thought about that. So, surprisingly, did Representative and Reverend Steve Hickey (R-9/Sioux Falls).

I'll admit, Hickey and I communicated. I helped crowdsource some support for a legal challenge to answer the questions AG Jackley and SOS Gant would not.

But Rep. Rev. Hickey decided to act. Last Thursday, April 10, Rep. Hickey filed an affidavit with the Hughes County Clerk of Courts asking the Sixth Circuit Court to order Secretary of State Jason Gant to reject Annette Bosworth's nominating petition and not print her name on the GOP Senate primary ballot. Rep. Hickey submitted an additional affidavit with evidence supporting the case that Bosworth and husband Chad Haber had invalidated her petition by violating their circulator's oaths. Hickey submitted 53 pages of exhibits in support of his affidavits.

Judge Mark Barnett e-mailed Rep. Hickey on Friday, April 11, and said he saw no way to schedule a hearing that could compel the Secretary of State to act in time to prevent printing of the ballots. He scheduled a tentative hearing for Friday, April 18. Ballots are due at county courthouses by Wednesday April 16.

Second Circuit Court Judge Susan Sabers was able to respond to a court challenge to an impending vote the same day it was filed, April 6, the day before the Sioux Falls municipal election. Evidently the Second Circuit can move faster than the Sixth Circuit.

Seeing that Judge Barnett deemed immediate remedy unworkable, Rep. Hickey has moved to dismiss his own action. The legal questions Attorney General Jackley and Secretary Gant have ignored on the Bosworth petition challenge thus remain unanswered.

But why did Rep. Hickey file his challenge in the first place? The good reverend offers this explanation:

I'm not connected with any Senate campaign so this is not one campaign trying to take out another campaign and so I'm not sure how this will be viewed today. But maybe someone someday will say, there was a time an overtly Christian US Senate candidate was so unscrupulous, scandalous and unChristlike, Steve was bothered enough to stick his foot out and try to trip that person up on a technicality. (The unscrupulous and scandalous things are the raffles and unpaid employees and vendors which have been documented by the Argus Leader. The unChristlike thing I'm referring to was the official Bosworth campaign video attack on a thorn-in-the-flesh citizen activist for a lone employment termination fully ignoring her own past which is far worse.)

Character is more important than Republican talking points. A few days ago Dr. Boz did a video likening herself to David against Goliath. My thought was if she was indeed David, then she need someone to be a Nathan to her. Nathan was David's friend who would not sit by and let David gloss over his significant transgressions. The ever-growing list of dubious things in the Bosworth candidacy left unchallenged only undermine the integrity of the process and public confidence which effects all of us in public office or seeking it. And, I do think it would be a win for the state GOP for the public to see we are willing to clean our own house once in a while [links mine; Rep. Rev. Steve Hickey, e-mail to Madville Times, 2014.04.14].

Expect Team Bosworth to spend campaign donations to attack Reverend Hickey with a comedy video showing him waving his arms during a sermon. Expect Rep. Rev. Hickey to let that water roll off his back.

In my statutory challenge to Bosworth's petition and in Hickey's now-withdrawn court challenge, citizens tried to work as swiftly as they could within the law and the compressed time frame created by the state to challenge what appears to be a fraudulent nominating petition. The Secretary of State, the Attorney General, and now the court have declined to act with similar swiftness to ensure that the ballot is not sullied by such fraud.

Related, 11:48 CDT: Bosworth alleges on Facebook this morning that "preachers that signed my nominating petition are being harassed by law enforcement." Note to Annette: asking questions is not harassment. But the thinnest-skinned person on the ballot asks with unabashed irony, "How do we stand up to this corruption?"

Update 12:44 CDT: Joel Ebert of the Pierre Capital Journal reports the story (and calls me a "liberal blogger"—yes!). Hickey reiterates to Ebert that he moved to dismiss his writ simply because the court could not take action in time to provide remedy.


Friends of the blog, friends of the rule of law, you helped make the challenge to Annette Bosworth's petition happen. You deserve to have a part in the discussion of what step to take next. You're already having that discussion here. Let's promote that discussion with a post of its own:

Last week, with your help, I filed a legal challenge to the Bosworth petition. The Secretary of State rejected the challenge while leaving key legal questions unanswered. He referred one question from that challenge to the Attorney General, but the Attorney General offered no firm response on the merits of any point of the challenge. The only thing he made clear is that (1) the Secretary of State has exclusive jurisdiction over election matters and (2) the Secretary's rejection of the petition challenge is reviewable only by the courts.

So, do we commit to spending money ($70 for a legal filing at the Hughes County Courthouse) on asking the court to review SOS Gant's decision? Who's willing to put their name on such a filing? Who's willing to donate some fast lawyer time tonight to ensure that the civil filing as the right legal verbage? Who's willing to fax or drive that filing to the Hughes County Courthouse by 5 p.m. tomorrow? Who's willing to take time off work to appear at a court hearing in Pierre to defend the people's right to have their laws enforced?

And who's willing to face the retribution that the political machine has made clear it's willing to dish on those who dare question their authority?

I set that time deadline rather arbitrarily, but it matters: ballots are to be printed and in the hands of the county auditors by April 16, next Wednesday. The Spellerberg pool challenge shows that when a Republican lawyer files a challenge, the court can turn a filing into a hearing in 24 hours. We're talking here about a filing that the Republican machine may fight to delay until it's too late for the ruling to matter.

Can we make this court challenge happen? Do you want to make this court challenge happen? Or are our resources better spent supporting candidates and blogs that will fight inaction, subjective enforcement, and other violations of the public trust? What is the best recourse for citizens interested in the integrity of the petition, the ballot, and democracy?

Joel Arends, screen cap, KELO TV, 2014.04.07

Voters deserve perfection in elections, says Joel Arends.

The failed challenge to the Spellerberg pool vote in Sioux Falls offers some useful statements about the sanctity of the electoral process. Evidently everybody missed the fact that the municipal ballot measure had a typo, listing the pool build deadline as December 15 instead of December 31, 2015. Citizens represented by attorney Joel Arends went to court yesterday asking the city to either stop today's election or rush-print new ballots with the correct date. Judge Susan Sabers said the typo is an immaterial error in ballot text not required by law. The incorrect ballots remain in effect, and the public vote goes on.

Arends says the court got it wrong and has weakened the integrity of the election process statewide:

Arends says the government has to be held to a higher standard, especially when an election is on the line.

“We are opening a Pandora's Box in this state. What we're saying is, excusable neglect will be allowed to serve as an excuse for changing the dates on petitions and ballots,” said Arends [Jeff Rusack, "Pool Group Ballot Challenge Denied by Court," KDLT, 2014.04.07].

But reprinting ballots and/or rescheduling an election costs money, doesn't it? Did Arends and his clients really want to cost the city $60,000 to reschedule the election?

"The inconvenience to the city pales in comparison to the inconvenience of the integrity of our elections," Arends said [Ben Dunsmoor, "Judge Denies Outdoor Pool Legal Action," KELO TV, 2014.04.07].

Arends says that, even in failure, his group's challenge represents a valuable part of democracy:

Attorney Joel Arends, who represented Save Spellerberg, says Monday's proceeding is the perfect example of the right people have to challenge any wrong-doings they may notice.

...He also points out that the voters deserve perfection when it comes to elections, even when dealing with a typographical error.

"I think the City of Sioux Falls is on notice now that people aren't just going to take these things lying down. They're going to take to the courts, they're going to take to the media and say 'Look folks, we expect more,'" Arends said [Jared Ransom, "Spellerberg Court Ruling Favors City of Sioux Falls," KELO TV, 2014.04.07].

Arends is absolutely right. Voters deserve perfection when it comes to all aspects of the electoral process, from signing petitions to watchdogging the use of campaign funds to counting every vote. Citizens who challenge errors and violations on petitions and ballots are true patriots, fighting for the integrity of the law and democracy.


In an entirely unsurprising, almost unnewsworthy development, Annette Bosworth lies again. The fake Republican Senate candidate misrepresents Attorney General Marty Jackley's response to the challenge to her nominating petition as confirmation that her petition was "lawfully and completed and submitted."

Read the Attorney General's letter to Secretary of State Jason Gant. AG Jackley says no such thing. The AG says a few other important things, but he makes no evaluation of the petition challenge itself.

Recall the four justifications the petition challenge offered for invalidating the petition:

  1. The petition lacked sufficient valid signatures of registered voters.
  2. Two circulators, Annette Bosworth and Chad Haber, violated the circulator's oath, submitting signatures that they did not witness.
  3. A notary, Joel Arends, validated those false circulators' oaths, violating his own notary oath.
  4. The name atop the petition does not match any registered Republican voter.

AG Jackley does not say one word in refutation or support of those contentions. He entirely avoids those questions, contending his office "has no statutory authority over the administration of elections or the verification of signatures on nominating petitions for public office." He does not say the Secretary of State acted properly. He does not say that a petition circulated by individuals who do not follow petition law is valid. AG Jackley says only that the Secretary's rejection of the challenge and certification of the petition is "reviewable only by a court through a writ of prohibition."

That is no validation. That is an abdication. If laws have been broken, if perjury has been committed, is it really up to citizens to investigate and prosecute those violations?

Note that of the four points raised in the petition challenge, only the challenge to specific signatures has been addressed and formally dismissed by the authorities. On the challenge to the circulators' violated oaths, the Secretary of State has said he has no authority to investigate. The Attorney General has cited legal precedent setting petition challengers a high bar of proving that a circulator's oath was not just false but fraudulent, but the Attorney General does not say the Bosworth and Haber oaths would survive an effort to provide such proof.

And like Secretary Gant, AG Jackley says nothing about the challenges to notary Arends or the non-registered Republican name atop the Republican primary nominating petition.

We thus have four legal questions about the validity of Bosworth's petition, and South Dakota's authorities have answered only one. Whether we will ever get answers to those questions remains to be seen.


Regular readers know I'm a teetotaler: no alcohol, no tobacco, and certainly no dope or other illegal drugs. Seeking altered states of mind through chemicals wastes time and money and far too often leads to trouble. That's my line as a dad, and to keep from giving my little one mixed signals, my political line hews closely thereto. I'm pretty sure some drugs should be illegal, though I'm open to debate on where to draw the lines of bans and regulations.

But as in any legal realm, if we're going to prosecute folks for using drugs, we need to prosecute them on reliable evidence. Adam Hurlburt of the Black Hills Pioneer reports that South Dakota is the only state in the country that uses remnants and metabolized by-products of restricted drugs as evidence for felony drug prosecutions. Lawrence County public defender Matthew Pike says using such evidence is unreliable and unconstitutional.

Pike has appealed to the South Dakota Supreme Court a case in which a client was prosecuted for felony possession of cocaine based on the presence of benzolecgonine in his urine. Pike maintains that evidence does not prove criminal activity in South Dakota:

Benzolecgonine is a metabolite of cocaine that can remain in the body for up to three days after ingestion of cocaine or any coca leaf-based substances, including decocainized coca leaf tea, which is legal both federally and in the state of South Dakota. Pike says the substance may also be found in some over-the-counter medications and even tap water.

Pike says it’s impossible to prove exactly how benzolecgonine ended up in his client’s system, and even if Whistler had knowingly imbibed cocaine, it would be impossible to prove that he’d done so in South Dakota based solely on the detection of benzolecgonine in his bodily fluids [Adam Hurlburt, "SD Supreme Court Case Could Alter Interpretation of State Drug Law," Black Hills Pioneer, 2014.03.28, updated 2014.04.02].

Pike raises a good question: there appears to be reasonable doubt about the reasons metabolites like benzolecgonine might be in anyone's bloodstream. How high should the bar be for drug prosecutions? Should we allow law enforcement to prosecute individuals based on the contents of their bodily fluids? Or should we declare our bodies, like our minds, off limits to investigation (Fifth Amendment, anyone?) and require prosecutors to rely solely on external evidence of illegal drugs themselves?

Screen cap from indecipherable Annette Bosworth video, 2014.04.04

Annette Bosworth looking over her left shoulder... emphasis on left.

Two fun Saturday challenges for eager readers: watch Friday's episode of Annette Bosworth's daily Jesus show (emphasis on show) from Friday, review the transcript below, and tell us (1) what she is saying and (2) where she is saying it.

I've listened to the text and can't figure out what she is reading from her script. Do these words have any meaning, or are they just a flustermumble of politics and theology cobbled together as a vehicle for cathartic piety?

Today I get to watch our laws unfold.

I believe that the law is the foundation of our country's freedom, but over the last two decades, the density of those laws has become so thick that the average person doesn't understand them, let alone trust them, that our culture has changed, that people no longer feel they can act on their best judgment. It's as if they're looking over their shoulder to see is there a rule against this reasonable decision.

Today's a snowy day in South Dakota, and as you walk on the sidewalk today, if there is a dispute, the question is, is there somebody in our society who sees it as their job to affirmatively protect you for doing and acting reasonably. In our state in our country, that person doesn't exist. That is what calls me to run for the U.S. Senate.

Today's a big day, and I'd like to lead us in prayer.

Heavenly Father, help me to not be dictated by fear, but instead to trust in you. Pray that you will help us to act, because on the final day, you will not say the words, well fought. You will not say the words well said, or well planned, or well prayed or well intended. You will say the words well done, my good and faithful servant. Help to protect the doers of your word. In Jesus name, Amen [Annette Bosworth, Facebook video, 2014.04.04].

Watch our laws unfold: that suggests a legal proceeding of some sort.

Density of those laws has become so thick: Density doesn't become thick. Density is thickness.

Act on their best judgment...rule against this reasonable decision: Bosworth's tired (literally, tired: she looks worn down, don't you think?) complaint about hard-to-understand laws sounds like a rationalization for having broken some of those laws.

In our state... that person doesn't exist: What? No one in South Dakota is standing up for... for exactly what again? For truth? Justice? Annette herself? And is she really saying that she's running for Senate because everyone else in South Dakota is an abject coward?

Bilked former campaign consultant Ethan Crisp (if we can trust handles in the Dakota War College peanut gallery) responds to this video by asserting that Annette Bosworth was in Pierre yesterday. Another source to this blog has claimed that Bosworth was called to see the Secretary of State and Attorney General to discuss her challenged nominating petition. Bosworth's Facebook post places this video in Sioux Falls, posted around 3 p.m. Central. Bosworth's husband Chad Haber FourSquare's them in Brookings last night around 8 p.m. Central.

But look at that photo: where's that wallpaper? Where's that generic framed picture? Anyone recognize the location?

I invite your analysis of Bosworth's prayer and her GPS coordinates.


May it please the court of public opinion:

1. Petition circulators swear the following oath:

I, under oath, state that I circulated the above petition, that each signer personally signed this petition in my presence, and that either the signer or I added the printed name, the residence address of the signer, the date of signing, and the county of voter registration [emphasis mine; SDAR 05:02:08:00.03].

2. Annette Bosworth circulated a petition.

3. Bosworth swore the above oath on five petition sheets that include signatures dated between January 5 and January 15, 2014.

4. Between January 5 and Jaunary 15, 2014, Bosworth was out of the country on a medical mission trip to the Philippines.

5. The individuals listed as signing the petition sheets Bosworth circulated between January 5 and January 15, 2014, were not all in the Philippines.

6. Those individuals could not have signed this petition in Bosworth's presence.

7. "That's obviously a no-no," says Secretary of State Jason Gant.

8. That's perjury, says SDCL 22-29-1:

Any person who, having taken an oath to testify, declare, depose, or certify truly, before any competent tribunal, officer, or person, in any state or federal proceeding or action in which such an oath may by law be administered, states, intentionally and contrary to the oath, any material matter which the person knows to be false, is guilty of perjury [SDCL 22-29-1].

9. That's a Class 6 felony, says SDCL 22-29-5.

10. SDCL 12-4-18 removes felons from the voter registration rolls while they serve their sentences.

11. If sentenced for perjury for violating her circulator's oath, Annette Bosworth would not be a registered Republican. If her sentence ran through Election Day, she would not be able to vote for herself... but interestingly, felons can campaign for and serve in the United States Senate.


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