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Gant Dodges Responsibility for Accepting Illegally Notarized Petitions

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."


  1. Mark 2012.06.16

    Amazing. The National Association of Secretaries of State (or whatever it's called) must be rolling its eyes.

  2. Dougal 2012.06.16

    If Dems take this to court, they could kick Gosch off the ballot forcing him to run as an independent or winning a seat. That would make Gant the first Republican responsible for a Democratic legislature pickup in the Hills in several years! The point is:

    * Gosch violated a law that is very well known to anyone who has ever run for office. Considering Gosch's experience in government, there is no excuse for ignorance here.
    * Gant ignored the law violation, but acquiesced to it because of his openly bias for Republican politicians.
    * Gant covered up for the law violation, which speaks volumes about him.
    * Gosch cannot legally be a candidate. Gant's decision to cover up for Gosch doesn't it make it a legal candidacy.

    I think it's a slam dunk! Go for it, for gosh sake!

  3. Donald Pay 2012.06.16

    There's plenty that could be done, but it requires government officials to put honesty, morals and ethics in government above party. South Dakota is a one-party state, where the normal checks and balances don't always apply. Legislators could initiate an interim study of Gant's office, in particular whether he is corrupting the election process. The Attorney General could investigate whether Gant violated laws.

  4. Nick 2012.06.16

    What ridiculous histrioni-ni-ni....... h-h-histrioni-ni............What ridiculous ACTING!!

  5. caheidelberger Post author | 2012.06.16

    ...on Gant's and Gosch's part, yes.

    [And Nick, given Nick Nemec's candidacy for PUC and regular commentary here, you might want to distinguish your name further. ;-) I'm fine with grudznick, for consistency's sake.]

  6. caheidelberger Post author | 2012.06.16

    Indeed, Donald, there's all sorts of action Pierre could take. Gant pretends this is all about the ballot, but independent of the ballot, he could revoke Gosch's abused notary seal. Statute makes his authority and duty there clear.

  7. 196thlightinfantry 2012.06.16

    Great report, but alas, we are lead by a new world order here and even if it is obvious to us all, in the republican world, it is really just a cloudy day. No worries and no problems as they now make the rules that they change at their will.

  8. John 2012.06.16

    The SD notary legislation needs an update. First, it should grant notary reciprocity with WY, MT, and ND as they do with their sparsely settled border states. Second, the SD law must acknowledge the federal notaries in the midst of the state. Third, it should expunge the silly state provision regarding alleged self-dealing as it's non-existent for federal notaries, lawyers, judges; and the "notary" is doing little more than validating a signature.

  9. Donald Pay 2012.06.16

    A reform Wisconsin took several years ago is to take election, lobbying and campaign finance out of the Secretary of State's office and put it under a non-political commission run by retired judges. It's not perfect. It is better than having someone from a particular political party running the show.

  10. Dougal 2012.06.16

    The news media and the state’s court system can’t allow Speaker of the House Brian Gosch a pass on violating a well-known law. Any notary knows you can’t notarize your own stuff – the purpose of a notary is as a legal third-party witness. Candidates are warned about proper notarization and they know the consequence: You lose your petition. If it’s fraudulent, you may face charges.

    Gant cannot convincingly pretend he didn’t know better. Thanks to Mark, you know that the National Association of Secretaries of State teach their members fundamental laws governing notaries. Gant surely knows a legal official can’t authenticate his/her own documents. The legal official (notary) must go to another notary to authenticate his/her documents.

    But Gosch? Let’s check his resume:

    * Speaker of the House of Representatives.
    * He has been a successful House candidate every two years since 2006.
    * Vice Chair of House Judiciary Committee (y’know, lawyers, judges and all that law stuff).
    * Vice Chair of Legislative Procedure.
    * Member of the power House State Affairs Committee.
    * Former Majority Whip in the House.
    * Former Speaker Pro Tempore.
    * And here’s the kicker: Gosch is an attorney!

    How does anyone chalk this self-notarization up to ignorance or an accident? How does it look when the politically radicalized Secretary of State covers up a violation of law by an attorney who is also Speaker of the House to help his partisan pal stay on the ballot?

    Considering how Republicans are working overtime to keep Americans citizens (minorities who vote Democrat) from their right to vote, here’s what should be a national scandal of a Republican Secretary of State bending over backward to ignore the violation of law to keep his buddy, the Speaker, on the ballot.

  11. Rorschach 2012.06.16

    Doing a bit of resume inflation on Rep. Gosch's behalf, Dougal? He is not the speaker of the house, nor is the the former speaker pro tempore. He's the current speaker pro tempore. He was not elected in 2006, his first election coming in 2008.

    Regardless, Gant pressed the issue in court with David Mitchell and then abandoned it after he found out Gosch was in the same position. Pure unadulterated indisputable double standard. To Gant the law is applied as written only against Democrats. Gant is the biggest (literally and figuratively) partisan hack ever to serve as secretary of state. He has turned his office into the tip of the GOP spear in SD. I once respected him, but no more.

  12. mike 2012.06.16

    If Gosch is kicked off the ballot it is his fault considering he argued with the SOS offices original interpretation.

    Gosch was being lazy.

    Where this hurts Gant is in going after Johnson but ignoring Gosch's failure.

    Now saying he isn't going to wade into these waters only makes him partisan looking. I have not seen a statewide elected official get this much negative media coverage since......Ever. And it has all been brought on by bad advice or stupid decisions.

  13. mhs 2012.06.16

    Sorry buddy, but, you're dead wrong. First, all the provisions above apply to contracts, the rule being a notary may not have a potential pecuniary interest in the instrument. No such interest may exist in a nominating petition as the candidate is not a party, the oath subscribed is by the carrier of the petition, not the candidate. 12-16-8.

    Secretaries of State have enormous discretion when it comes to the form of documents they will accept. Chris Nelson's opinion may rightfully and legally be different. When Alice was SOS my law firm actually sued the office for clarity from the courts on a policy we disagreed with.

    I have filed literally thousands of notarized documents in my career, in 9 different states. Each has it quirks.

  14. caheidelberger Post author | 2012.06.16

    That's a liberal interpretation that Judge Barnett said it's his job, not the Secretary's, to make. Each state has its quirks, and South Dakota's are laid out in statute.

    The only out is the transaction loophole. I say there's a transaction. Voters are putting their name to a document, staking reputation, in return for getting so and so on the ballot. Gosch's name is on the document he notarized, and he's definitely a party to the "transaction" at hand. Chris Nelson didn't just pull rabbits out of hats; he knew the law and followed it to the letter. Gant would lose this challenge in court.

  15. grudznick 2012.06.16

    Mr. Dougal is looking through insanity glasses. 10 percent of what he stated is fact, which puts him on the credibility scale (which I control) somewhere between Mr. Sibby and the crazy libbies attacking Mr. Stan these days.

    Going insane is not for the weak of heart, and I want some of you out there to think very deeply about it before you come further in that direction.

  16. hmr59 2012.06.17

    The simple fact is that Gant is an embarrassment for our state - and this clown thinks that he has a chance to be governor someday??? Jason - please focus on the job you have right now, whadda ya say???

  17. Stan Adelstein 2012.06.17

    After the discussion, and web page pull down, I have today sent this request to the Attorney General - as a Senator, and Senator elect

    Dear Attorney General Jackley

    I request that you investigate the office of South Dakota Secretary of State. I am concerned about allegations of impropriety, conflict of interest, and possible illegal activity.

    A political commercial enterprise "Dakota Campaign Store" solicits political consulting, and sale of campaign material. It appears that it may actually be operating out of the Secretary's office - by Mr Pat Powers, who is an apparent full time employee of that office, and has primary responsibility, in that office, for some of the same IT services that he is advertising.

    Does "," use political filings from candidates to solicit business? It is obvious that Mr. Powers is the first to see any such filing - and with the new "assistance" program offered by his office has access to private information, not available to his competition.

    I am concerned about the edorsement of a primary election of the incumbent Speaker of the House of Representatives. Does that endorsement arise out on any financial arrangements with this "consulting"service? Were any of the campaign material used in that primary race purchased through or by that enterprise?

    Does the Secretary himself directly or indirectly participate in earnings of this political operation? By indirectly, I mean discounts for material, utilization of services pro bono, etc.

    Has the Secretary purchased, even at market value, campaign material from that enterprise for his re-election campaign, or made use of mailing lists, etc?

    Has any of the business of this commercial service utilized State computers, office space, lists, office supplies, etc. in the conduct of it's affairs.

    Time may be of the essence! I went online at 12:40 mountain time, June 15 and perused in detail Mr Powers advertising on Shortly thereafter I expressed my concern to most of my Senate Colleagues. Since my posting to them, that website has been taken down! Mr Powers, among other things, is well known as a computer Guru - and I fear that evidence of wrongdoing could be erased, revised or otherwise distorted.

    If you establish apparent impropriety or misbehavior, I am also asking for your advice with regards two sections of Article XVI of the SD Constitution. Is it possible that Section 2 - "impeachment" - is something I should be seeking as a Senator or possible (and to my Engineers mind) more likely Section 3, "Removal from Office." My education and background makes the distinction between the offences listed in each somewhat unclear.

    Stanford M Adelstein State Senator, District 32

  18. grudznick 2012.06.17

    O-o-o-okay, everyone. N-n-n-nothing more to see. Th-th-the-th-the-th-that's all, folks.

  19. Eve Fisher 2012.06.17

    You cannot notarize your own signature. Period. If your signature is on the document, you can't notarize it. Period. Gant and Gosch are both just tap dancing, knee deep in bull flop.

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