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Gant Drags Feet on Referendum Petition Validation, Creates Legal Uncertainty

We wake to a glorious summer sun blighted by one ugly legislative black spot: House Bill 1234 becomes law today.

Wait a minute: didn't we put Governor Daugaard's really bad education reform law on hold with 30,000 signatures on a statewide referendum petition?

Not yet. As of Friday, Secretary of State Jason Gant and his employees were still checking those petitions. With no certified referendum, nothing stands between HB 1234 and its statutorily deemed July 1 enactment.

Last year, on June 27, South Dakota Democrats submitted about 22,800 signatures to refer Governor Daugaard's corporate welfare program to a public vote. Secretary Gant's office validated those petitions three weeks later, on July 18, 2011.

In 2009, voters submitted about 25,000 signatures to refer South Dakota's smoking ban to a public vote on June 22. Then-Secretary of State Chris Nelson and his team validated those petitions on June 25. He took just a moment to explain the urgency of getting the job done:

...Since the timeline is so tight, that took place on Monday, the same day the signatures arrived in the office.

"This deals with a law that goes into effect on July 1 unless we find enough signatures on the petition. So we have to know by midnight, June 30 whether or not there are enough signatures on this to determine whether the law goes into place," Nelson said [Jon Wilson, "Validating Smoking Ban Petition Signatures,", 2009.06.23].

In 2006, defenders of women's equality submitted 38,000 signatures to refer yet another South Dakota abortion restriction on May 30. Secretary Nelson's team validated those petitions on June 19.

I know Secretary Gant hates comparisons to his predecessor, but here's the plain fact: Secretary Nelson validated both of the statewide referendum petitions that came across his desk before the July 1 enactment date. He turned one of those petitions around in three days to make sure there was no statutory whiplash. Given two referral petitions to validate, Secretary Gant has pa-dinkled around on both, letting the validation drag on past the prescribed enactment that supporters wanted to avert.

And don't forget: during these past two weeks, facing an important deadline on flagship legislation, Secretary Gant has not exactly chained himself to his desk. He's been lounging about at the state GOP convention. The day he received the petitions, he drove to the Black Hills to seek a private chat over political problems with Senator Adelstein.

The failure to validate the referendum of HB 1234 before July 1 may be small potatoes; technically, the worst that happens right now is that HB 1234's numerous working groups are briefly officially authorized to have their conversations (not that the absence of legal authorization has stopped Governor Daugaard and Education Secretary Schopp from plowing ahead with their machinations). The really destructive stuff—counterproductive merit pay, elimination of teacher due process rights—doesn't kick in until later school years.

But Secretary Nelson never committed this failure. He fired up the RANDom function on Microsoft Excel (yes, we validate petitions with spreadsheets!) and got things done in time to provide statutory certainty. Secretary Gant obviously has other things on his mind than doing his job right.


  1. Stan Adelstein 2012.07.01

    As the kids say OMG! Let's see - Gant is changing the address for his "consulting" business - he has someone assigned to see when/how Bob Mercer is checking his files online, his chosen deputy is selling real estate 133 miles away (and as I supposed it would, that house picture was quickly move), that is when he is not sleeping at his desk.

    To my knowledge this has NEVER happened before. I guess if we cannot get that crew out of the 2nd floor we will have to pass a bill requiring referral petitions to be in within 10 days of veto day!!

    Failure, obfuscation, side business(es), political deal making --- so new to us, that it is unbelievable. In Illinois is taken for granted, but it was once just the first sign of political disease. WE MUST -- all of us -- not just a Legislator or two -- ALL SDakotans, stop it before it becomes an epedemic.

    Stan Adelstein ("once again," and still Senator)

  2. Rorschach 2012.07.01

    Gant has been and continues to be a disaster in the SOS office. In 1 1/2 years he has already earned his return to the private sector. What an incompetent political hack he has turned out to be.

  3. Testor15 2012.07.01

    I think our esteemed Senator is the best thing to happen to this situation. You've got it.
    I have been pushing people for years to care about this boring office.

  4. Donald Pay 2012.07.01

    The submission of the signatures automatically stops the law from going into effect until a vote on the measure. The petition signatures are assumed sufficient unless the Secretary finds otherwise.

  5. caheidelberger Post author | 2012.07.01

    Submission puts things on hold? Cool! Donald, I was trying to find the statute that says that. Can you point me the right direction?

  6. Stan Adelstein 2012.07.01

    Me too, Donald. Mere submission would not seem a way to invalidate a decision (even as bad as this one) by the Legislature.

    Stan A

  7. Bill Fleming 2012.07.01

    Wouldn't it be this one?

    "9-20-11. Date of election on referendum petition--No action taken pending election. The governing body shall, upon the presentation of a petition pursuant to § 9-20-6, submit the question to the electors at the next annual municipal election or the next general election, whichever is earlier. Pending the election, the governing body may take no action with respect to the subject matter of the petition that would alter or preempt the effect of the proposed petition. However, the governing body may expedite the date of the election by ordering, within ten days of receiving the petition, a special election to be held on a Tuesday not less than thirty days from the date of the order of the governing body."

  8. Bill Fleming 2012.07.01

    (...dang, now I probably just got another cookie from the SOS office. LOL)

  9. Bill Fleming 2012.07.01

    And this one, as mentioned in 9-20-11 above:
    "9-20-6. Time for filing referendum petition. The required number of voters residing in any municipality may file within twenty days after the publication of any ordinance or resolution subject to referendum a petition with the auditor or clerk, requiring the submission of any such ordinance or resolution to a vote of the voters of the municipality for its rejection or approval. If filed on the twentieth day after publication, such petitions shall be filed no later than normal closing hours of the city hall or city auditor's office on said twentieth day."

    Taken in combination, doesn't that mean that the law gets put on hold once the petitions are filed?

  10. Donald Pay 2012.07.01

    The SOS has an administrative function which the Legislature has provided to him, like publishing bills. His failure to do so in no way can interfere with the clearly stated constitutional operation of the Legislative Branch of government. Using this to try to shoehorn in these unauthorized and illegal committees is an impeachable offense. Consider that, Governor.

  11. caheidelberger Post author | 2012.07.01

    I'm not convinced, Bill. Chapter 9-20 deals with municipal referendum. Chapter 2-1 covers statewide referendum and initiative, and I couldn't find the technical timeframe there. Even if 9-20 applies, that "presentation of a petition" likely means a petition validated by the chief election official. If submission suspended enactment, I could generate 15,000 petition sheets with 300,000 bogus signatures, submit them, and suspend a law I didn't like for a month as the Secretary of State verified the 5% random sample, 15,000 signatures (and as I headed for the hills to avoid prosecution for bogus petitioning).

    I'd like to believe petitions would be considered innocent until proven guilty, but that doesn't seem to be the thrust of other statute. Chris Nelson seemed to think validating the signatures pre-enactment was a big deal. Even if Donald is right, I'd like to see the statute (or case law?) establishing exactly when a petitioned law is put on hold.

  12. caheidelberger Post author | 2012.07.01

    unauthorized... illegal... impeachable... boy, those just aren't words I would want to hear about my work!

  13. larry kurtz 2012.07.01

    Déjà vu all over again:

    "Republicans prepared for the 2010 election with an eye toward replicating and expanding this strategy. The Republican State Leadership Committee (RSLC) unveiled the Redistricting Majority Project (REDMAP) in 2010 to target Statehouse races and put Republicans in charge of redistricting efforts following the election." Source.

  14. Bill Fleming 2012.07.01

    Cory, I guess I would argue that technically the referred legislation stays on hold once the petitions are filed (since that's what the statute says) until such time as they are deemed invalid (which would be why the SOS would want to hurry up and either validate them or challenge them). But of course, I am a rank amateur here. All I'm doing is reading the statutes and trying to understand what they say.

    Conversely (and hypothetically) couldn't a SOS unilaterally 'pocket veto' any referred law or intitiave s/he didn't like simply by fiddling around and not getting to them until after the law goes into effect? I can't imagine our giving the SOS that much power.

  15. Bill Fleming 2012.07.01

    (...of course, now that I think about it. Katherine Harris while SOS in Florida basically took it upon herself to appoint her Governor's brother to the Presidency of the United States... so I suppose strange things HAVE happened, huh?)

  16. caheidelberger Post author | 2012.07.01

    I guess I read the sequence in reverse: a law is put on hold when it's put to a public vote. It's put to a public vote the moment the election official certifies the petition. Until that certification happens, the petition doesn't have force, and the rest of the law proceeds apace.

  17. Bill Fleming 2012.07.01

    So are you suggesting that the SDSOS does indeed have the power (by inaction) to stop an I & R movement? If so, that's pretty spooky, huh?

  18. caheidelberger Post author | 2012.07.01

    Not stop permanently by inaction... but you've got me wondering now if there is some brief, temporary "pocket veto" created by the SOS's failure to validate in timely fashion. SDCL 1-8-1 requires him to perform his duties, which include checking petitions and either validating or rejecting. So he has to act, and there must be some legal threshold that constitutes not acting timely... and in this case, I would think the July 1 enactment date would be that threshold. Nelson suggests that deadline, but I'm still looking for the language in code.

  19. Stan Adelstein 2012.07.01

    I think Cory had it right with the phrase "Even if 9-20 applies, that “presentation of a petition” likely means a petition validated by the chief election official."

    I also think that the law may only be in effect for a few days == if the idiot SOS comes up with a validation. Now if that does not happen, I think that as a Senator have what the lawyers call "standing," to ask for a injunction preventing the law from staying in effect.

    Obviously!! I will do so if necessary!

    We will see what happens tomorrow - which is already after the effective date of July 1.

    This SOS is not a "disaster waiting to happen," but one that IS daily disaster happening.

    Senator Stan A-+

  20. Michael Black 2012.07.01

    Once a up a time I read a sign on a professor's door at DSU: "A lack of planning on your part does not constitute an emergency on my part."

    Secretary Gant's office workload priorities may not be the same as yours. One of my friends that worked in state government was told to go home at the end of the day even when he wanted to work late on his own time to get finished. Done or not, the clock mattered most.

  21. caheidelberger Post author | 2012.07.01

    Michael, your excuses for our leaders' foibles tires me. State law gives petitioners 90 days after the end of the Legislative session (this year, until June 18) to submit referendum petitions. Secretary Gant knew that deadline was coming. We submitted petitions by that deadline. The petitioneers bear no blame for this delay. My priorities (like Secretary Nelson's, when he faced this same task) are the proper and timely execution of state law. If Secretary Gant's priorities are not the same as mine, South Dakota has a big problem.

  22. Donald Pay 2012.07.01

    It's pretty simple. The Executive Branch can't override the Constitutional rights of the people, or violate the powers and duties of the Legislative Branch of government, by a purely administrative act of an Executive Branch official. That would violate, among other things, our Republican form of government.

    You have to read the laws and the constitution in a way that makes sense and is constitutional. The act of filing of the petition stays the law until the SOS determines petition signature validity. If there are enough valid signatures, the law remains stayed until the vote. If there aren't enough signatures the law goes into effect on July 1, or on the date that the SOS determines the petition does not have enough valid signatures. Any delay in validating the petitions simply means that the law could not go into effect until the SOS indicates there aren't enough signatures.

  23. grudznick 2012.07.01

    Mr. Pay makes cents. Legislative Powers can't be overridden. You Gant violate Powers.

    False alarm, nothing nefarious going on here. Those people who want to stop the rule saying we should give good teachers more money march on.

  24. Carter 2012.07.01

    Any lawyers hanging around here who feel like suing? I'd guess that'll be the only way to get the system to do what it's supposed to.

    Either way, I just read an article in the paper today by Jon Ellis saying Gant couldn't afford another issue, and I come home from work and there's already another issue!

  25. Stan Adelstein 2012.07.01


    First of all, if you are not just PeePee masking himself, give us your real name - I do!

    This is another failure of Gant to perform, as required by law, and as every predecessor in memory has.

    As far as pay for better teachers, there is NO pay in HB1234 as passed. NONE, $0.


    The adminsitration knew that they could not pass a bill with money in it, so the dollars were REMOVED - that means taken out, that means not $0.01 in the budget - nor even projected into future budgets.

    All of this despite continual advertising of $15M - which is untrue, as well as advertising "local control," which was also defeated in two amendments - at the administrations direction.

    The administration's amendment to take out the money was made from the desk right in front of mine.

    The motions to insert amendments that would have brought local control were moved from my desk. The vote to pass the amendments were vote aye by the seated Republican Senator, (and 11 other thinking Senators)!!

    Hence Gant's endorsement of a political hack who did the bidding of someone else - not his constituents. He thus became the only Speaker of the House who could not pull 37% of his home district, they knew who he REALLY wanted to represent, and sure was NOT them.

    Senator Stan Adelstein, district 32

  26. grudznick 2012.07.01

    I didn't mean to eat your goat only to point out that young Mr. Gant is thumbing his cartoonish nose in your very face, sir.

    Lots of legislatures have voted for laws that require spending money but didn't put any money into the budget before. I bet it happens all the time with some Senaturs. That doesn't mean they're any less of a law.

    grudznick (not Grudznuck or PeePee)

  27. Donald Pay 2012.07.01

    Some of my ideas about this issue border on wild conspiracy theory, but here goes:

    What if this isn't Gant, but the Governor? How deep into this quagmire did the Governor wade? Assuming he believes the bill is now law, what action has he already taken? And what about the AG? What is his role in this? What has been his advise to the Governor? Is Gant simply looking incompetent in order to try to give the Governor cover for some cooked up subterfuge to put the bill into play for a brief few days before the referendum? What does he think he gains by this?

    As I've said, I think all of this maneuvering would be for naught. It would be unconstitutional, and all the Governor's supposed authority would ultimately fail, but engaging in this subterfuge would be a violation of his oath of office and an impeachable offense.

  28. Donald Pay 2012.07.01

    And, further, what out-of-state interests are supporting the Governor in this attempt to undermine the referendum?

  29. Stan Adelstein 2012.07.01

    This afternoon, around one I thought of a conspiracy theory – Now that Don Pay started it, here is mine:

    · The SOS agrees for some exchange/deal or other, to endorse a Primary candidate.
    · Maybe, the plan was to do even more than merely endorse if there is a close race or some "irregularity."

    · The endorsed candidate twisted arms to get a 1 (one) vote passage of a bill that was the centerpiece of the Governor's legislative agenda.
    · The Governor also endorsed that Candidate.

    · The endorsee's opponent, a seated State Senator, after much thought, and failure of a series of amendments – which he and 11 other Senators supported - votes against the bill, and publicly explains that bills weaknesses.

    · After the gross (67-33) loss by the endorsed candidate, the Secretary now chooses (perhaps for the same unknown “exchange/deal”) to foot drag the certification of the referendum.
    · This delay beyond July 1has obviously a very unclear and perhaps serious outcome, maybe even a Constitutional question.

    · Now we could further theorize on that "exchange/deal."
    · Could it be a hoped for "protection," from the Speaker of the House who, after all, still serves on the Executive Board? Could that "Protection" be support to prevent action against the SOS - for mismanagement, financial conflict of interest, may enough for impeachment?

    Pretty far fetched - sort of a mini-novel. So I waited some hours to share it

  30. Donald Pay 2012.07.01

    In general I believe in the "incompetence argument" against government conspiracies. And I also believe that the wider the conspiracy, the less likely it is to have occurred (probably by some power factor). Still, this level of incompetence has never occurred in this position, so it almost has the smell of something planned.

  31. Carter 2012.07.01

    Now, now. Let's not attract Mr. Sibson with talk of conspiracies.

    To me, it's more likely that the entire office is comprised of incompetents desperately trying to cover up their tracks and backpedal around to fix all the mistakes they've made. It's pretty common in politics, it's just that Gant and Powers aren't adept enough (intelligent enough?) to really strategize their backpedaling. They're like two-year-olds trying to back their trikes around corners, without knowing which way to turn the handlebars.

  32. caheidelberger Post author | 2012.07.02

    Donald, I'll tentatively accept your interpretation, which sounds like the way a judge would reason through the situation if there were major July 1 implementation issues at stake. The question remains why Chris Nelson was able to validate a 25,000-signature petition in three days, while Jason Gant needs two weeks.

  33. larry kurtz 2012.07.02

    Anyone not believing that a conspiracy could not take place in South Dakota doesn't remember Jacinta Eagle Deer.

  34. Bill Fleming 2012.07.02

    You're in the clear, Cory. Nothing like waiting 'till the last minute, huh?:

    p.s. noticing how the RCJ frames this as a "union" deal. This is how those memes get started. If it's more than "the union" your side better nip that kind of editorializing in the bud, huh? No sense letting your issue get defined that way. Seems to me there's a lot more to it than that.

  35. caheidelberger Post author | 2012.07.02

    Shut down those committees! And for Pete's sake, how many times do I have to keep telling the Rapid City Journal, I'm not a member of any union?

Comments are closed.