Mary Perpich successfully challenged Clayton Walker's nominating petition, ending his aspiration to be an Independent candidate for Senate. Secretary of State Jason Gant agreed with Perpich that over 1,600 signatures, nearly half of those Walker submitted, were bogus, leaving him 1,400 shy of the 3,171 Indies need to make South Dakota's statewide ballot.
There's no way Walker can recover enough of those signatures in any legal challenge. He outright lied, making up names like Dusty Cover and Cherry Drop. Walker's only resort now is to try throwing out Perpich's challenge on a technicality. Mr. Montgomery reports that Walker is arguing that Perpich filed her challenge too late. He says that state law requires petition challenges be filed within five days of when the candidate files the original petition:
Within five business days after a nominating, initiative, or referendum petition is filed with the person in charge of the election, any interested person who has researched the signatures contained on the petition may file an affidavit stating that the petition contains deficiencies as to the number of signatures from persons who are eligible to sign the petition. The affidavit shall include an itemized listing of the specific deficiencies in question [SDCL 12-1-13].
Walker submitted his petition on the deadline date of April 29. Secretary Gant did not certify the petition until May 1. Perpich submitted her challenge May 8, seven business days after Walker filed his petition with the Secretary of State, five business days after the Secretary of State certified the petition.
When I challenged Annette Bosworth's illegitimate Senate nominating petition last month, I wondered about exactly that statute and the challenge timeframe it species. Bosworth submitted her petition on March 25, but Secretary Gant approved it on March 26. To be safe, I operated on the assumption that the clock started ticking when the petitions were "filed with" the Secretary. However, the Secretary's office informed me during the process that they start the clock ticking when the Secretary certifies the petition.
Secretary Gant consistently applied that same standard to the Walker challenge:
"Mr. Walker is wrong," Gant said in an email. "Petitions are received on a particular day and they are filed on a particular day. The difference is that received is the date they are received into the office. Just like the deadline for petitions to be received by the SOS office on a particular day. The filed date is when the candidate or issue is approved or denied access to the ballot... The challenge time frame can only begin once the petitions are filed by the office. That determination of approval or denial of the ballot is what allows for an interested party to challenge the decision of the SOS."
Walker's petitions, Gant wrote, were "received" on April 29.
"On May 1, I filed his petitions as approved for the ballot," Gant said. "Five business days after May 1 is May 8, the date the challenge was received" [David Montgomery, "Walker vs. Gant on Petition Challenge," Political Smokeout, 2014.05.21].
It almost sounds like Secretary Gant is confusing with and by. But in SDCL 12-1-13, filed appears to mean not the action of the candidate handing the petition to the Secretary, but the action of the Secretary or his deputy formally placing that petition in the file marked Certified.
That standard makes sense: no official petition really exists for the public to challenge until the Secretary certifies it. Secretary Gant took a strangely long two days to review and approve Walker's petition; it would be unfair to deny challengers those two days to conduct their challenge or to require that challengers engage in the expense (money and time) of a challenge before they know whether the Secretary himself will spot errors and render a public challenge unnecessary.
Walker's only hope of reclaiming his spoiler status thus rests on one verb and one preposition against a consistent, logical, and fair standard for public review. I think Walker loses.