Last updated on 2014.03.30
Concerned about Jason Gant's poor performance as Secretary of State? Pay attention.
The South Dakota Democratic Party's successful lawsuit to place David Mitchell of Mitchell on the District 20 House ballot brought up an awkward argument for Gant about candidates notarizing their own petitions. Gant had two problems with Mitchell's petitions. First, he said Mitchell had failed to fill in a blank swearing to his identity and Democratic affiliation. Later, Gant complained that Mitchell had notarized his own circulator's signature.
Judge Mark Barnett said the first argument wasn't enough to keep Mitchell off the ballot. Barnett didn't get to rule on the second, because Secretary Gant withdrew it. Let's review why:
Gant also had argued that Mitchell's nominating petition did not contain enough voters' signatures because Mitchell notarized some sheets of the document himself. Gant dropped that argument during Friday's court hearing after evidence submitted by Mitchell indicated that at least one other legislative candidate also might have notarized his own nominating petition.
Mitchell's lawyer, Sam Khoroosi of Sioux Falls, said 42 of the 211 legislative candidates submitted nominating petitions with various kinds of flaws.
Rep. Brian Gosch, R-Rapid City, who is speaker pro tem in the House, was the only candidate among the 42 who notarized his own nominating petition, Khoroosi said [Chet Brokaw, "SD Judge: Democratic Candidate Can Be on Ballot," AP via Real Clear Politics, 2012.05.25].
Now state Dems chief Ben Nesselhuf says notarizing one's own circulator's signature is a common, allowable practice. Khoroosi's count doesn't appear to find it all that common in this year's Legislative petitions. But Speaker-in-waiting Brian Gosch says it's allowable:
Gosch, a lawyer, said he doesn't believe he violated any law because he only notarized the signature of another person who was the official circulator of the nominating petition.
"I'm not notarizing my own signature," Gosch said [Brokaw, 2012.05.25].
18-1-12.2. Party to transaction as notary public prohibited. It is a Class 1 misdemeanor for a person to affix a signature to a document as a notary public when the person has also signed the document as a party to the transaction proceeding.
Class 1 misdemeanor. That's the nastier one, the step right below felony. Year in jail, $2,000 fine.
See also SDCL 18-1-7:
18-1-7. Notarial acts valid despite notary's agency for party to transaction. A notary public who is personally interested directly or indirectly, or as a stockholder, officer, agent, attorney, or employee of any person or party to any transaction concerning which he is exercising any function of his office as such notary public, may make any certificates, take any acknowledgments, administer any oaths, or do any other official acts as such notary public with the same legal force and effect as if he had no such interest except that he cannot do any of such things in connection with any instrument which shows upon its face that he is a principal party thereto [emphasis mine].
Now take a look at the nominating petition for partisan election, as defined by SD Administrative Rule 5:02:08:01. It requires that each candidate sign a declaration on his or her petition.
Brian Gosch must have signed the declaration of candidacy on each sheet of his nominating petition. Brian Gosch says he also notarized on at least some of those sheets the signature of the person who circulated the petition for him.
To be particular—as one should always be when dealing with the solemn affairs of the notary public—Brian Gosch affixed his signature to a document as a notary public when he had also signed that document as a party to the transaction proceeding. That act appears to violate SDCL 18-1-12.2, making Gosch guilty of a Class 1 misdemeanor.
Brian Gosch exercised a function of his office as a notary public on an instrument which shows upon its face that he is a party thereto. That act appears to violate SDCL 18-1-7, which appears to invalidate any such instrument.
The same statements apply to David Mitchell, if he did indeed notarize his own nominating petitions. Class 1 misdemeanor, invalid petitions.
So what's supposed to happen here?
SDCL 18-1-13. Removal of notary from office for violation. Any notary public who is convicted of committing an act which is designated as a misdemeanor in this chapter or any felony shall be removed from office by the secretary of state.
And when's that supposed to happen?
SDCL 18-1-14. Notice to notary of revocation of commission. Should the commission of any notary public be revoked, the secretary of state shall immediately notify such person by mail.
Chapter 18-1 makes clear that notaries answer to the Secretary of State. If a notary screws up, it's the Secretary of State's job to yank their seal.
I haven't heard any barking yet. Secretary Gant was made aware of a violation of Chapter 18-1 during the May 25 court hearing. If Secretary Gant was scrutinizing the nominating petitions (and he certainly was scrutinizing some of them back in March) he should have been aware of said statutory violation in March.
But as far as I know—and friends of Gosch, Mitchell, and Gant, please do correct me if I am wrong—Secretary Gant has not revoked either Rep. Gosch's or Mr. Mitchell's notary commission.
We do well to heed the blunt advice of Margaret Thatcher's press secretary Bernard Ingham (foul language is o.k. when conservatives do it, right?): "Many journalists have fallen for the conspiracy theory of government. I do assure you that they would produce more accurate work if they adhered to the cock-up theory."
Whether Secretary Gant's inaction is a product of conspiracy or incompetence, he is damaging the public trust.
Update 18:22 CDT: District 32 House candidate Jackie Swanson, who hopes to unseat either Rep. Gosch or his GOP seatmate Kristin Conzet, is sending around copies of a complaint she just sent to Secretary Gant this evening . Gant has probably already stepped out of the office to engage in more politics, so you may be reading her text before he does. She read Chet Brokaw's report week before last and obtained copies of Gosch's petitions.
Brian notarized three of his own petitions, which, if invalidated, would have left him with insufficient signatures to qualify for the ballot. This appears to be a statutory violation, which would make those petitions invalid, and a criminal act for which he should be held appropriately accountable.
To quote from your website regarding notary commissions, a notary is a public officer charged with "special trust and confidence in integrity and ability." Your office is charged with the essential public trust to run legal and fair elections. Your office is also charged with the oversight of notary publics.
I am very concerned about the integrity of elections, the public perception of favoritism, and the uniform application of the law. The notion of political favorites determining not only public policy, but even right and wrong, is troubling to many of us. Though progress has been made in state government transparency, time and again arrangements come to public light that make us question the integrity of our public officials. Too often, the voices of disagreement or dissent are silenced.
Brian Gosch is a good man and a good legislator. He is also a lawyer and the people's representative. I realize that he made an honest mistake and did not intend to disobey the law, but that appears to be what has happened [Jackie Swanson, letter to Secretary of State Jason Gant, 2012.06.04].
Swanson tells Secretary Gant that she lacks the resources to bring an immediate court challenge. She appeals to Gant to "step in" and correct the situation.