Call Senator Brown now, and ask him why he fears democracy.

Call Senator Brown now, and ask him why he fears democracy.

Senator Corey Brown (R-23/Gettysburg) has perverted Senate Bill 69, the cornerstone of the petition reform package, into an effort to make it harder for Independents to get on the ballot. Not satisfied with that damage, Senator Brown now files Senate Bill 166, which continues the Republican war on the people's power of initiative and referendum.

Current statute (SDCL 2-1-5) uses the total number of votes cast in the last gubernatorial election to determine how many signatures are necessary to place an initiated measure or referred law on the ballot. Per SDCL 2-1-1, initiated laws and referenda require signatures of 5% of those gubernatorial voters. Given the turnout of 277,403 voters in the 2014 gubernatorial election, petitions for initiatives and referenda in the next two cycles will require 13,871 signatures to make the ballot.

Because initiatives and referenda tend to go badly for his party, Republican Senator Brown wants to repeal SDCL 2-1-5 and replace the signature count not on the number of people who actually voted in the last gubernatorial election but on the number who could have voted. Assuming he means registered voters on November 3, 2014, that's 521,041. SB 166 would thus nearly double the number of signatures needed to get measures on the ballot, to 26,053.

And because he knows folks are already planning initiatives that he doesn't like, Senator Brown includes an emergency clause in SB 166 to make sure no one could file an initiative before July 1 under the current, less onerous signature requirement.

South Dakotans, Senator Brown does not trust you. He wants to take away your constitutionally guaranteed power to make your own laws. Don't let him do that. Write or call Senator Brown and ask him how Senate Bill 166 serves the public interest.

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I guess it was too much to hope that the Legislature could do petition reform without making things worse. But no: propose a bill dealing with election law, and Republicans will get out their knives and do all they can to cut more people out of the political process.

After a week of delay, Senate State Affairs finally revisited Senate Bill 69, the primary petition reform bill proposed by the Board of Elections. Committee Republicans did not amend SB 69 the way the ACLU and ballot access expert Richard Winger testified was necessary to protect the access to the ballots that the courts have said is new parties' constitutional right. The committee did not fix the legislation to avoid the court challenge the ACLU said South Dakota could face if it moves the new-party petition date to February.

Instead, Senator Corey Brown (R-23/Gettysburg), seconded by Senator Dan Lederman (R-16/Dakota Dunes), amended a whole different section of statute to change the requirements for Independent candidates to get on the ballot. Right now, Independents seeking statewide office must obtain signatures from a number of registered voters equal to 1% of the total votes cast for governor in the last general election. Based on the 2014 turnout of 277,403 voters, that's 2,775 signatures. Lawmakers amended SB 69 today to change the requirement to 1% of all registered Independents. That number shifts from month to month, but the latest number from the Secretary of State counts Indies at 103,856. That means Independent candidates for U.S. House, U.S. Senate, and PUC in 2016 will need to gather just 1,039 signatures, 63% fewer than current statute requires.

Hold your huzzahs, Larry Pressler. Current law also allows Independents to get signatures from any registered voter, regardless of party affiliation, as long as that voter has not signed for another candidate. Right now, Indy candidates have 522,636 registered voters whose signatures they can pursue. Given a state population of about 850,000, an Independent petitioner's chances of picking an eligible petition signer out of a crowd at a Stampede or Rush game is about 61%. Under this amendment to SB 69, bolstered by a second amendment by Senator Ernie Otten (R-6/Tea), those odds drop to 12%.

Just how much harder does this amendment to SB 69 make it for Indies to get on the ballot? Let's imagine an ideal situation, the perfect candidate who can get every eligible voter to sign. To get all the necessary signatures, plus the smart 20% cushion to prevent error, an ideally appealing Indy petitioning under current law needs to approach (2,775 ✕ 120% ÷ 61% =) over 5,400 people. Using the same math, under SB 69 as amended, an ideal Indy would need to approach (1,039 ✕ 120% ÷ 12% =) over 10,200 people.

In other words, an Independent now has to work a crowd or a neighborhood 88% harder to get on the ballot.

Why do that, Republicans? Making it harder for Independents to run for office serves no public good. It serves only the dominant party's interest in nipping the power of a surging portion of the electorate in the bud.

Senator Brown further stunk up Senate Bill 69 by attacking the "placeholder" practice in which candidates with no intention of standing in the general election petition their way onto the ballot in the spring, then withdraw after the primary, allowing party chairs to pick replacements. The parties (Democrats more often than Republicans) avail themselves of placeholders when they can't recruit definite candidates by the end of March deadline and want to keep trying until August. Moving the petition deadline to the end of February cuts further into the time parties have to recruit candidates, making the placeholder tactic more valuable. Senator Brown, who said last week he finds the placeholder practice "abhorrent," amended SB 69 to forbid it. Under his amendment, the only ways candidates can withdraw will be if...

  1. they get nominated, elected, or appointed to another elective office that they can't hold simultaneously with the one they are running for;
  2. they move out of the district.
  3. they die; or
  4. they or immediate family members are diagnosed with an illness after filing and the candidate produces a note signed by two doctors describing the illness (that's got to violate medical privacy rules, not to mention common human decency).

I can barely get past the Ed-Rooney-to-George-Peterson crassness of condition #4 to fully calculate the electoral mischief. But I can pick my jaw up off the floor long enough to indict Senator Brown's placeholder amendment on two counts. First, Brown's amendment leaves no room for replacing a candidate who petitions seriously, then gets caught in a major scandal. That omission could bite any party.

More importantly for understanding what's really happening now with SB 69, consider that if Brown's amendment has any merit, it lies in the notion that letting party chairs pick candidates is undemocratic. If that's his point, I would agree, to an extent. But Brown's amendment still lets party chairs pick replacement candidates when "There is no other nominee for the office sought by the withdrawing candidate as of the time of the withdrawal." That clause says that in an uncontested election, the party chair gets to name not just a replacement candidate but the actual officeholder, which is even less democratic than the placeholder practice. Translation: Senator Brown isn't fighting for democracy. He's just fighting Democrats.

Senate Bill 69 and its companion bills SB 67 and SB 68 weren't perfect when introduced, but I was willing to support them, assuming we could make some changes that would protect the integrity of the petition process without suppressing citizen participation. Alas, today's Senate State Affairs Committee action shows the Republican majority would rather kick people out of the electoral process. Unless legislators can snuff out this malicious intent and return to serving the public interest with these bills, the petition reform package should be killed.

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Senate Bill 69, the big bill in the petition reform package that moves petition circulation up a month to run from December 1 to the last Tuesday in February, was deferred again Friday in Senate State Affairs. Recall that on Wednesday, Chairman Tim Rave (R-25/Baltic) and the committee deferred the bill to Friday upon hearing concerns from ACLU South Dakota policy director Libby Skarin and ballot access watchdog Richard Winger that the February deadline violates case law requiring that newly organizing political parties be given until later in the spring to submit petitions for official recognition by the state. Skarin told the committee that the ACLU could prepare language for an amendment to SB 69 to protect new parties by the end of the day.

Friday at 10 a.m., Senate State Affairs convened. The first action was to defer SB 69 until Monday. Senator Corey Brown (R-23/Gettysburg) complained that the ACLU had just delivered the amendment to the committee members. Senator Brown indicated that, out of courtesy, he'd like to see amendments delivered ahead of time. (Now Senator Brown nows how folks feel when they show up to testify and haven't been given heads up of amendments that totally change the bill and the dynamics of the debate. How about posting those amendments online ahead of time, Senator Brown?)

Senator Rave echoed Senator Brown's complaint, saying that while the Session is starting more slowly this year, "things are going to pile up" and he'd like to keep things moving.

I'd be grousing, too. The ACLU said it could submit wording by end of business Wednesday; why'd it take until Friday?

The wording isn't that hard. To satisfy the ACLU's concerns, one need simply move to amend Section 10 by inserting the following language at the end of its existing amendment of SDCL 12-5-1:

If a new political party seeks to participate in the general election but not the primary election, the deadline for that party to submit its petition to the Secretary of State shall be the last Tuesday in June.

It's that simple. If the ACLU wants to add a provision for a late-coming party to nominate folks for Governor, U.S. House, or U.S. Senate, we'll have to get tricky and make allowances for Independents as well. If that's what the ACLU is after in this amendment, then they are probably barking up too complicated a tree and should get someone to sponsor a whole separate bill (and I'm very open to that action!).

But we need to get things moving. The petition reform package has two other moving parts. The Senate has sent SB 68 to the House; Senate Bill 67 is waiting. These bills shouldn't be going anywhere until we see the final form SB 69 takes.

Senate State Affairs takes up SB 69 tomorrow, Monday, January 26, at 10 a.m., along with five other bills. Chairman Rave didn't like spending 50 minutes on the bill Wednesday, and from the tone of Friday's deferral, I'm betting this is the last time Senate State Affairs gives SB 69 its attention.

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I'm not sure what sector of the electorate Gordon Howie thinks he's targeting by investing so much of his blog energy in blowing smoke for Annette Bosworth. Continually stumping for an admitted lawbreaker and fake conservative who showed no ability to build a viable campaign in South Dakota serves neither Howie's objective of building an effective opposition voting bloc nor the higher aims of justice. Neither will defending Bosworth with errors of fact and law.

In his latest excuse for Bosworth's petition circulation felonies, the re-energized conservative blogger Howie repeats the charge that the Attorney General's prosecution of Bosworth is unfair given all the other alleged violations of petition rules that go unpunished or lightly punished:

Many petitions circulators have violated this “oath” by not “personally witnessing” every signature. In South Dakota, just a few years ago, six Republicans were found guilty in a case that involved as many as 1,400 signatures. Their penalty… a $200.00 fine. Now, for an alleged violation involving 37 signatures, Annette Bosworth is facing 24 years in prison, thousands of dollars in fines and the loss of her license to practice medicine. Seem fair to you?? [Gordon Howie, "Is Your Legislator Guilty?" The Right Side, 2015.01.22]

Howie refers to a ballot probe in 2004 that found six Republican get-out-the-vote operatives, including future state legislator Todd Schlekeway, notarized absentee voter applications without personally witnessing the applicants' signatures. Note that Schlekeway et al. were not circulating petitions; they were soliciting absentee voting applications, thus invoking charges under different law. As I explained in July, Schlekeway's violation of his notary seal was a misdemeanor. He pled guilty and received a misdemeanor penalty.

In the Schlekeway case as in the Bosworth case, the Attorneys General (Long then, Jackley now) have acted to uphold the letter and spirit of the law while protecting voters from disenfranchisement. If Howie wants to invoke the Schlekeway precedent, then the fair outcome would be that Bosworth would plead guilty to her felony and receive her felony penalty.

Trying to fabricate a defense for Bosworth out of thin air and grade-school excuses, Howie accuses a majority of South Dakota legislators of committing the same crime and challenges them to deny it:

Actually, the practice of “not personally witnessing” petition signatures is widespread, but rarely challenged. Certainly not to the level of felony charges.

Here is the question for every Legislator in South Dakota, both past and present:

Will you swear that you personally witnessed every single signature on every petition you have circulated?

There are, no doubt, some who can respond in the positive. They will be in the minority.

Howie made this same baseless and cowardly charge for the same Boz-crush purpose at the beginning of the month. His charge is logically, legally, and factually wrong because...

  1. Howie cannot name a single guilty party.
  2. Howie produces no example of a petition with evidence of a false circulator's oath.
  3. Howie confuses a rhetorical question for logical proof.
  4. Howie shifts the burden of proof from prosecutors (who can slam-dunk meet that burden against Bosworth in court) to the unnamed defendants under his blanket accusation.
  5. Howie forgets that every legislator who circulated a nominating petition has already answered Howie's rhetorical challenge by signing the circulator's oath.

Howie's last resort may be the appeal for mercy. Note his inclusion in the list of consequences for Bosworth the fact that a felony conviction could cause her to lose her medical license.

Commit one felony, get kicked out of your profession? Welcome to my world. State law says South Dakota teachers can lose their teaching licenses for committing any crime involving moral turpitude or drugs. The Professional Teachers Code of Ethics puts my teaching license at risk if I engage in any act the results in a conviction. I suspect other licensed professions have similar rules. Professional status carries special burdens.

If Howie wants to propose revoking all professional licensure requirements in South Dakota and declare that criminal records should bear no weight on allowing people to teach or practice medicine, I invite him to lay out that case. If Howie can produce evidence of petition fraud by other candidates, I invite him to lay out the evidence. So far in his fresh Boz-crush, he has done neither... and even if he does, such arguments and evidence will have no bearing in front of Bosworth's judge next month.

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The Senate State Affairs Committee heard concerns from the American Civil Liberties Union this morning that the petition reform legislation working its way through Pierre may need some changes to protect ballot access for new political parties.

In testimony on Senate Bill 69, South Dakota ACLU policy director Libby Skarin said her organization understands the overarching reasons the Board of Elections has proposed this bill along with SB 67 and SB 68, to improve the validation process for nominating petitions. However, said Skarin, moving the petition circulation period one month earlier, to a submission deadline at the end of February, creates ballot access issues, especially for new political parties seeking official recognition from the state. Skarin said that the ACLU brought litigation in 1984 challenging a February petition deadline and got that deadline moved later.

To flesh out the ACLU's opposition, Skarin recruited Richard Winger, the ballot access expert blogger Ken Santema cited yesterday in contending that SB 69's February deadline may violate the Constitution. Testifying by phone from out of state on the kind indulgence of committee chairman Senator Tim Rave, Winger said that the Supreme Court has held that states must allow new parties to form in the spring of an election year. He noted that the Republican Party formed in July 1854 in response to the Kansas-Nebraska Act passed that spring. Winger said South Dakota is the only state that requires new parties to petition for status before the primary elections. He said there is no need for new parties to form before the primaries.

Winger and Skarin did not ask the committee to reject Senate Bill 69 or even any portion of it. They asked instead that the Legislature add language moving the petition filing date for new parties back to a more reasonable and Constitutional summertime date and allow new parties to nominate their candidates at convention. Neither had a formal amendment fleshed out to present to the committee this morning, but Skarin said she could have a proposal to senators by the end of the day.

Building on the ACLU's point about ballot access, Senator Bernie Hunhoff (D-18/Yankton) said the February deadline could make it much harder for legislators to help their parties recruit candidates. It's hard enough getting people to run, said Senator Hunhoff. Move that recruitment period to the holidays and the heart of Session when legislators are busy in Pierre, and even more ballot slots may go unfilled. Senator Hunhoff proposed that State Affairs defer SB 69 to allow a couple days to draft legislation that would cover the ACLU's concerns and perhaps create a provision to allow party chairs to fill ballot slots left empty at primary filing time.

When Senator Hunhoff asked her if such a proposal would complicate the election process at all, Secretary Krebs mentioned that parties right now can recruit placeholders to achieve the same end but said she'd have to check with her staff to see if they could think of any complications.

Senator Corey Brown (R-23/Gettysburg) said deferring the bill wouldn't change the indigestion he was feeling over Senator Hunhoff's proposal. Senator Brown said he finds the whole placeholder concept "abhorrent," and he didn't sound any more enthusiastic about letting party chairs pick nominees for blank spots. He also seemed uneasy about letting new parties nominate legislators at convention, as if facing an opponent selected by just a handful of his neighbors was an affront to democracy.

Chairman Rave, sounding a bit irked to have spent 50 minutes on this one bill, nonetheless urged and the committee agreed to defer SB 69 to Friday, when he promised to handle the bill briefly (translation: if you've got amendments, Bernie, they'd better short and sweet).

Senate State Affairs felt no need to delay SB 69's companion legislation, SB 67. That bill, which would set the second Tuesday in March as the deadline for filing court challenges against nominating petitions, drew no opposition and moves to the Senate floor.

But proceed carefully, Senate: passing SB 67 and SB 68 (which passed Senate Local Government this morning) only makes sense if SB 69 passes without amendment to its petition submission deadline of the last Tuesday in February. Make changes to SB 69 without changing SB 67 and SB 68, and you'll have a statutory spaghetti spill on your hands. (Remind me, Board of Elections, why we didn't write all these changes into one bill?)

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We have our first official ayes on the petition reform package Secretary of State Shantel Krebs is carrying to the Legislature on behalf of the Board of Elections. The Senate Local Government Committee (remind me, what part of requiring the Secretary of State to review statewide nominating petitions is part of local government?) this morning voted 6–0 to send Senate Bill 68 to the full Senate. SB 68 would authorize the Secretary of State to apply the same random 5% sampling process to statewide nominating petitions that she currently must apply to ballot measure petitions.

Worth noting: I use the verb require while Secretary Krebs would say authorize. Require seems more in line with SB 68's auxiliary verb shall; saying authorize seems to assume a may in the bill.

Our verbal disagreement reflects a legal disagreement: like Secretary Jason Gant before her, Secretary Krebs contended before Senate Local Government this morning that we need SB 68 to allow the Secretary to check petitions. I deem that interpretation invalid: current statute includes no specific ban on the Secretary conducting a review to ensure the validity of a nominating petition. But Secretary Krebs and I interpret legal authority differently, and SB 68 will put us on similar pages.

Senator Craig Tieszen (R-34/Rapid City) expressed some frustration that we need SB 68 to get the Secretary of State's office to take this step to ensure the integrity of petitions and the ballot. In the only discussion offered following Secretary Krebs's statement and response to questions, the Rapid City Senator said he was frustrated last year to see that no one seemed to want to be responsible for checking the validity of petitions. Senator Tieszen said he saw too much back and forth between then-Secretary of State Gant and Attorney General Marty Jackley.

Senator Tieszen didn't say it outright, but we know full well he was referring to this blog's effort to challenge Annette Bosworth's perjurious petitions and the failure of Secretary Gant and AG Jackley to respond to many of the legal questions that challenge raised.

Senator Tieszen also commented on legislative nominating petitions. SB 68 does not require the Secretary to review legislative nominating petitions. Secretary Krebs excused that omission by saying that it's hard enough to recruit folks to run for Legislature without subjecting them to that level of scrutiny... which statement seems odd, given that requiring the Secretary to review legislative nominating petitions imposes no burden on the candidates themselves and would only remove candidates who have broken the law and thus should not be on the ballot anyway.

Senator Tieszen offered a more coherent reason for omitting legislative nominating petitions from SB 68. He reminded us that the typical nominating petition for a legislative candidate requires fifty signatures. He said that if he suspects someone running against him for District 34 Senate has submitted a bogus petition, it doesn't take much work for him to get the petition himself and review all the names. Citizens can easily check a legislative nominating petition; checking statewide petitions with thousands of signatures, said Senator Tieszen, should be the "responsibility" of the Secretary of State.

SB 68 heads for the Senate next; it may well be joined by the other elements of the petition reform package, Senate Bills 67 and 69, which face Senate State Affairs scrutiny this morning at 10 a.m.

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Libertarian blogger Ken Santema finds a new glitch in the petition reforms proposed by the state Board of Elections. He says Senate Bill 69, which moves the primary petition circulation period up one month to December 1 to the last Tuesday in February, violates the constitution by also setting the deadline for filing petitions to form a new party on that last Tuesday in February.

For details, Santema turns to Richard Winger at Ballot Access News:

These state officials probably don’t remember that in 1984, South Dakota’s Attorney General and Secretary of State admitted that a February petition deadline for a newly-qualifying party is unconstitutional, and the legislature then moved that deadline to April. This admission was made after the South Dakota Libertarian Party sued the Secretary of State. That case is reported at 579 F Supp 735 (1984). However, the only decision the judge had to make in that case was that the wording on the party petition was unconstitutionally restrictive. The judge didn’t need to adjudicate the part of the case that challenged the February deadline, because the state admitted it was too early [Richard Winger, "South Dakota Bill Moves Deadline for Newly-Qualifying Party Petition from March to February," Ballot Access News, 2015.01.20].

We bumped that deadline back from last Tuesday in April to last Tuesday in March in 2007.

Whether case law actually prohibits the earlier February deadline for party-formation petitions, Senate Bill 69 and the other bills in the petition reform package do citizens' opportunity to get themselves and their parties on the ballot. Mr. Santema says that disadvantage is enough to sink the whole reform package in his book:

I still have more research to do on this topic. But right now it appears the burden placed on ballot access in SB 69 overwhelms any good intentions of the bill. Yes, the nominating petition procedures in South Dakota need to be overhauled. However at this time it appears the wrong path is being taken. As a short-term fix maybe amending the bill to remove the new restrictions on newly-qualifying parties would be appropriate. But it might be time to realize that true reform may not be possible during the 2015 legislative session. Instead perhaps a workgroup or summer study should be formed to take a deep look at election law in SD and in other states for a comparison. Then come to the 2016 legislature with a comprehensive solution that would fix the problems experienced in the 2014 election while concurrently ensuring the first and fourteenth amendment protections are properly observed [Ken Santema, "Ballot Access Issues with SB 69," SoDakLiberty, 2015.01.20].

If we need petition reform, perhaps this question of ballot access makes my five amendments, including moving the deadline to the first Tuesday of March, all the more essential to passing the current package of legislation. We can't move the petition deadline back to April, since federal law demands we have absentee ballots ready for military voters 45 days before the primary. We could adopt the Lanny Stricherz plan to move the primary into summer so we could circulate petitions in May.

But if we can't move dates, then the best we may be able to do is make petitions electronic (complete with official circulators' tablet apps and online signatures!) so that we can submit petitions the day before ballot printing and instantly check signatures against the voter registration database. (Given that Secretary Krebs pulled out the wires on the campaign finance reporting system this morning, now might not be the time to suggest a whole new electronic form submission system... but I'm willing to take my chances! iPetitions, Secretary Krebs! What do you say?)

The Senate Local Government Committee hears Senate Bill 68 tomorrow, Wednesday, at 7:45 a.m. Central. Senate State Affairs takes up the rest of the petition reform package, SB 67 and the troubling SB 69 shortly afterwards, at 10:00 a.m.

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Ken Santema is blogging again! Whoo hoo! Sanity and originality return to the conservative lobe of the South Dakota blogosphere!

In his second post-hiatus post this week, Santema notes that the Senate State Affairs Committee is taking up three bills this morning:

  1. SB 23 clarifies that the state really does own the South Dakota Art Museum at SDSU, and that it really will cooperate with the South Dakota Federation of Women's Clubs. No big deal.
  2. SB 35 cleans up statutes regulating veterans' affairs. No big deal.
  3. SB 67 sets the second Tuesday in March as the deadline for filing court challenges against nominating petitions and fast-tracks any such challenges on the court schedule. That's a big deal.

The consideration of Senate Bill 67 this morning is a big deal because it's being considered separately from Senate Bills 68 and 69, the other two key components of the petition reforms proposed by the state Board of Elections. By itself, Senate Bill 67 is a bad idea. SB 67 assumes that we will move our petition-circulating period up one month, to begin on December 1 and end on the last Tuesday of February (SB 69). It ignores the possibility that legislators may (and will, if they are sensible) amend SB 69 to set the petition submission deadline as the first Tuesday of March to maintain the same practical length of time as candidates currently enjoy to circulate petitions. It also ignores the fact that, if we are really interested in giving citizens more time to challenge petitions, we would set their challenge-filing deadline at the end of March, which would still give the courts time to hear and rule on those fast-tracked challenges.

Considering SB 67 today, in isolation, also assumes that we will require the Secretary of State to conduct a 5% random-sample review of all statewide nominating petitions (SB 68). Secretary Krebs explained to me last week that the expanded review by her office called for in SB 68 is meant to take the burden off citizens to file challenges with the Secretary of State's office. The Board of Elections expects, says Secretary Krebs, that post-reform, citizens will take all petition challenges to court. But our ceding our participation in challenges prior to court action to the Secretary should come in exchange for expanded time to prepare for those court challenges.

Senate Bills 67, 68, and 69 are moving parts in the same machine. They all three need amendment. They all three definitely need to be considered together, in the same package, in the same committee hearing. But SB 68 is going to the State and Local Government committee, and SB 69 is going to State Affairs some other day. At the very least, State Affairs should table SB 67 until Sb 69 comes up alongside it. Meanwhile, State and Local Affairs should refer SB 68, which deals exclusively with activities in the Secretary of State's office and not in local government, up to Senate State Affairs.

Update 10:32 CST: Good government lucks out! Bob Mercer reports that Secretary Krebs was unable to attend today's Senate State Affairs hearing, so Chairman Tim Rave (R-25/Baltic) postponed consideration of SB 67 to Wednesday.

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