Last updated on 2012.12.12
Secretary of State Jason Gant plans to take no action on the illegally self-notarized petitions of aspiring House Speaker Brian Gosch (R-32/Rapid City) or House candidate David Mitchell (D-20/Mitchell). Instead, he says he will ask the Legislature, including whichever of those candidates may win a seat therein, to make the law "crystal clear."
That's funny: the law seemed crystal clear to Gant's predecessor, Chris Nelson:
Former Secretary of State Chris Nelson, who now serves on the state Public Utilities Commission, said his office policy was clear on the issue.
"Candidates could not notarize their own petitions," Nelson said. "We had people do that, and we rejected them."
Nelson said they never ended up in court over that question, however.
"I don't remember that it ever happened on the final day, where it cost somebody a candidacy," he said. "It happened early enough where we could say: 'Hey, you can't do this. Get us some more signatures.' And we were good to go. We went to court on a whole lot of questions, but not that one" [Kevin Woster, "Dispute over Gosch Petition Notarization Headed for State Legislature," Rapid City Journal, 2012.06.16].
Gant whimpers in reply:
Gant said that was then and this is now.
"I don't know what the previous secretary's policy was," he said. "But I want to make the future better by clarifying the issues for the 2014 election" [Woster, 2012.06.16].
That was then... horsehockey! We're not talking about the previous secretary's policy. We're talking about what state law says, and it says the same thing now as it did when Nelson ran the show and ran it well:
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.
That law has been on the books since 1997.
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.
That law hasn't been amended since 1960. Those two laws make clear that you don't notarize documents on which your name appears as a principal party.
But wait: Gant doesn't need me telling him what the law is... when he has Brian Gosch telling him how to interpret it in Brian Gosch's favor:
Gosch said he turned his nominating petition in at the secretary of state's office in January and was initially told by a staffer that there was a problem with notarizing his own petition. Gosch said he argued that he was only notarizing the name of the petition circulator, not his own name. The petition and signatures were accepted [Woster, 2012.06.16].
Wait a minute: the Secretary of State's office tells a candidate there's a problem with his petitions, the candidate offers a looser alternative interpretation of the law, and the Secretary of State's office says, "O.K."? That's not what happened in Charlie Johnson's case, and that's not what Judge Mark Barnett said should happen:
In Monday's hearing, the judge said Gant acted properly when he rejected Johnson's nominating petition because the state's top election officer must strictly apply the laws and rules. If Gant, a Republican, used discretion to decide which flawed petitions substantially comply with the law, he could be accused of favoring one political party over another, Barnett said [Chet Brokaw, "SD Judge: Democratic Candidate Can Be on Ballot," AP via Real Clear Politics, 2012.05.21].
If you're Charlie Johnson, you have to take your argument to court. But if you're Speaker pro tempore Brian Gosch, you get to argue your case for free on the spot in the Secretary of State's office and get the liberal-to-breaking interpretation of law that you want.
The integrity of the notary seal doesn't require a change in the law. It requires a change in management. It's too bad we have to wait until 2014 to do that. Our only option now is to maintain constant vigilance over a Secretary of State's office that appears to rule by fiat, not law.
Update 12:27 CDT: Gant's failure to understand and carry out his duties on notary seals only adds to the reasons that Senator Stan Adelstein (R-32/Rapid City) calls the Secretary "an absolute disaster to the Republican Party, the SD elective process and to the values of our State."