Secretary of State Shantel Krebs and the Board of Elections have sent the South Dakota Legislature three bills to reform the candidate petition review process. The three bills work as a package and must all be passed together to work.
Senate Bill 67 establishes the second Tuesday in March as the deadline for filing any challenge to a nominating petition for a primary election in circuit court. SB 67 fast-tracks any such challenge in circuit court. It then requires anyone challenging a circuit court ruling on a challenge to file their appeal with the Supreme Court within ten days of the lower court's order.
Senate Bill 68 requires the Secretary of State to review every nominating petition for a statewide candidate by reviewing five percent of the submitted signatures by random sample, similar to the process the Secretary of State currently carries out for every ballot measure petition. SB 68 requires the Secretary of State to notify candidates of the results of the review within five days of completing the review.
Senate Bill 69 is the messy one. This bill moves the petitioning dates for primary elections back one month, from January 1 through the last Tuesday in March to December 1 through the last Tuesday in February. Independent candidates also get to start circulating on December 1, but they keep their filing deadline of the last Tuesday in April. New political parties must also submit their petitions for recognition one month earlier, on that last Tuesday in February instead of the current last Tuesday in March.
In addition, Senate Bill 69 eliminates the late-arrival exception for petitions sent by registered mail and postmarked by the petition deadline; under this bill, all petitions must be in the Secretary's hands by the deadline. SB 69 moves the deadline for nominating petitions in special Congressional elections up from 45 days to 65 days before the special election. SB 67 addresses the Myers-Hubbel-Collier conundrum and explicitly allows an independent candidate for lieutenant governor to withdraw and be replaced.
I appreciate the Election Board's effort to require the Secretary of State to do her job better than her predecessor in protecting the integrity of the ballot from fraudulent petitioneers. However, this tripartite reform is focused entirely on operations at the top and does nothing to help the grassroots participate in elections and the petition process.
First, let's deal with the petition review and challenge process. These reforms do nothing to make petitions more accessible to citizens who want to review nominating petitions. When I led a group that challenged fake U.S. Senate candidate Annette Bosworth's nominating petition, the Secretary of State's office charged $2 per page, which brought the cost of obtaining Bosworth's petition to $452. Effectively reviewing petitions requires matching signatures with the statewide voter registration file, for which the Secretary of State's office charges $2,500. Grassroots reform would take steps to make petitions and the voter registration file more easily available to citizens. Nominating petitions should be posted online for all interested and connected citizens to review. The Secretary of State should reduce the cost of the voter registration file or, as a compromise, modify the Voter Information Portal so that grassroots petition reviewers can look up individual voter registration records by entering the voter's address (information that petitions require) instead of the voter's birthdate (information that petitions do not and should not require).
Furthermore, while these bills give the Secretary of State more time to review petitions, the bills seem oblivious to the practical impact of the changes on the timeframe for citizen action.
Let's look at these reforms in the context of the challenges to the Bosworth petition last year. Bosworth submitted her petition at the last minute on March 25. My team had to submit its challenge to the Bosworth petition to the Secretary of State by April 1. Under these reforms, we'd have had the same week. As rational actors in the political marketplace, knowing the Secretary of State was carrying out the random-sample review required by SB 68, we might have wanted to save our money and see if the Secretary would do our work for us. But we could not wait and see, because our five-day clock would still start ticking when the petitions were submitted, not when the Secretary certified them. Citizens are caught in a bind, having to commit to an expensive challenge process that may turn out to be redundant if the Secretary's random sample finds the same errors the thorough citizen review would find.
Plus, consider that for me to challenge the Bosworth petition under the SB 69 calendar, I'd have been reviewing petitions during the last days of February and the first days of March, the height of the Legislative session. I'd have had to drop my coverage of bills in Pierre and focus on the petition challenge. I can imagine that other political activists (and candidates?) would find this overlap as burdensome as I would.
Rep. Steve Hickey's court challenge to Bosworth's petition would fare no better. Rep. Hickey's challenge last year died because there was not time between the Secretary's rejection of my challenge on April 5 and the ballot-printing and delivery due date of April 16 for the court to hear the challenge. Under SB 69, Rep. Hickey would have had all of March and early April to file his court challenge. Hickey could have spent March gathering evidence and legal advice. He could have filed suit on April 1. Judge Mark Barnett could have scheduled a hearing for April 7, expedited a ruling, and the Secretary of State would have had plenty of time to finalize the ballot by April 16.
But Senate Bill 67 inexplicably shuts the door on that opportunity for oversight. The second Tuesday in March gives future court challenges no more time to launch than Rep. Hickey had last year.
As a minor complaint, Senate Bill 69 chips away at the time citizens have to get on the ballot. Moving the circulation period up one month reduces the time candidates have to circulate. February is two or three days shorter than March; in 2016, SB 69 would take away one full week of circulation time. Circulating petitions during Christmas shopping sounds like a bad idea, as people are too absorbed in their hectic shopping to pay as much attention to clipboard-carrying circulators. Circulating petitions during the Christmas break seems downright tacky. SB 69 adds a really crappy month for petitioning by taking away March, a month that offers more daylight and more chance of springtime weather for marching door to door and catching folks on the sidewalk at the post office.
Senate Bills 67, 68, and 69 try to address weaknesses in the petition review process. However, they ignore the role of citizens in the process and close more doors than they open. To make this reform work, let's make five key changes:
- In SB 67, change the court challenge deadline to April 1 or drop the deadline altogether, allowing the ballot-printing deadline to continue setting the effective deadline.
- In SB 67, count the five-business-day deadline for submitting challenges to the Secretary from the day the Secretary certifies a petition.
- In SB 68, add a requirement that the Secretary post online all petitions and itemized reports on the results of each random-sample verification (i.e., show which signatures were checked and which, if any, were found invalid).
- In SB 68, include a provision requiring the Secretary to make voter registration records searchable online by name and address.
- In SB 69, move the petition submission deadline to the first Tuesday in March.
Call the waambulance, Cory. Dems who don't boycott the session are supreme cowards.
CH,
Question: What is the public policy purpose of your #4? As you can see maybe from my comments, I think the public policy goal should be to make it both easier and more practical to legitimately challenge petitions. I don't know if we really need one more place for private citizens names to show up on data bases.
Comments:
#1: I think there should be a defined date such that the public policy statement is that it is reasonable for a challenge to be filed.
#2: Rather than giving the specific signatures given as invalid, how about just saying x number are invalid? If someone thinks they want to challenge the petition, they can see the entire report.
#3: I have no problem with these being in the public record. My thought though is these should be requested and have no problem with them provided electronically.
#5: I disagree. I don't think the earlier deadline hurts anyone practically and it makes it easier for challengers. If you can't follow the deadline rules, you probably aren't competent enough to serve.
Larry, that's not going to happen. That comment is not helpful. Give it up. Let's focus on the bills before us and the practical alternatives we can offer.
I don't have a NeatDesk scanner but if it works as advertised why can't the petitions be scanned, and the electronic files made accessible to the public? Then, if your own name shows up on a petition you never signed, you would find out and could complain about it.
Doing away with registered mail will be the first thing stricken from SB 69. Requiring candidates filing in the last week to drive to Pierre to ensure that their petitions get there on time doesn't make any sense to me.
And I don't know why the SOS office can't review 100% of the signatures submitted for statewide candidates. Candidate petitions aren't like ballot issues with 20,000+ signatures. The number of signatures on candidate petitions are a small fraction of that. Is it really too burdensome for the SOS to ensure that candidates have collected enough valid signatures to be on the ballot? Let's stop looking for excuses not to do the job and just do the job!
Troy, the public policy purpose of Recommendation #4 is to make it easier for citizens to review petitions. Note what I say in the post: I don't need to see the entire voter registration database posted in downloadable form. All I need is the Voter Information Portal, which allows us to look up voters one at a time, to replace the birthdate field with an address field. With that option, a person reviewing a petition can check names one at a time based on information provided on the petition. That system would release no information that the voter has not already made public by signing the petition. Plus the one-at-a-time search would prevent marketers from simply downloading the whole database and turning it into a mailing list. (We can include CAPCHA/delay features to prevent robots from slurping all the addresses in a flash and crashing the SOS server.)
Cory, the simplest solution is to simply require a small registration fee. So what if we have 20 candidates for a spot.
Troy, to your other comments:
#1: I'm o.k. with a firm date. The military voting law already sets a practical firm date; I don't mind making that date explicit in SD law. But second Tuesday in March is too early. April 1 still leaves time for the judge to hear and rule before the Secretary must print.
#2 and #3 (addressing my Rec. 3): Telling us which signatures are invalid is better. Rejected candidates can double check those names and see if the Secretary erred. Challengers can accept those rejected names and look for additional names. The Secretary will generate this itemized list to do the job; publishing that list requires trivial extra work and saves others lots of work.
#5: I disagree with your disagree. The earlier deadline reduces the signature gathering time by a week in 2016. That's a practical impact, especially for legislators whose schedules at the new petition crunch time would already be packed. The earlier deadline does not make it easier to mount a five-day challenge. The earlier deadline would make it easier to file a court challenge, allowing litigants to gather their resources for a full month, but SB 67 blocks negates that advantage by imposing the same rush on court action as exists now.
Rohr, I share an uneasiness about the registered mail change. Bob Mercer reported last week that the Board of Elections members brought that change up and passed it unanimously. Board member and Deuel County Auditor Pam Lynde said that change "would solve a lot of problems."
I have to ask, what problems? The only problem appears to be that the SOS office is waiting a few days to make sure it has all the petitions. Sure, those late arrivals also put the crunch on those of us who'd like to challenge—during the Bosworth challenge, a few petition sheets arrived late, and we had to get those and process them... but those late sheets get the same five days as hand-submitted sheets. Moving the submission deadline back to February alleviates that verification crunch.
I thus can't see any real good reason to remove the mailing/postmark allowance. There's more chance that a snowstorm will keep candidates from delivering their petitions than there is that the USPS will lose them. That snowstorm chance is heightened by setting the delivery deadline at the end of February instead of the end of March, which may be all the more reason to leave the mailing/postmark deadline alone.
Registration fee? From whom, Steve? Not from candidates. No pay to play. Circulating petitions and passing that civics test is enough of a fee. Enough of you and your facilitation of the plutocracy. ;-)
Anne, you raise a good point about accountability. If we could post petitions in a searchable format (and whether we can get some OCR device to read everybody's atrocious penmanchip or whether we have key in individual lines by hand as my team did in the Bosworth challenge is open for discussion), it would be useful for citizens to be able to check petitions just to see if their names appear. Imagine the crowdsourcing opportunity: if thousands of citizens each checked their own names, we'd have a greater chance of flagging real petition fraud.
CH,
Wouldn't your comments on #2 & #3 be accomplished by someone making a formal request (with requirement for prompt provision of the information)? (my privacy concerns)
Regarding #5, are we agreeing to disagree? Or is it worth it to make another run at your conclusion? :) Is your concern, the SDDP needs the week to get more placeholders? (I couldn't resist)
Scan all petitions and create a free digital copy upon request.
Cory, a small fee like $20. Much less cost than running around and collecting signatures. The result would be more people, and non-party types, entering the political process. Now, one has to do a lot of research and work, or hire lawyers and accountants to comply with all of the rules. If we want a citizen legislature again, then we should make it easier for citizens to run.
Troy, my #3 is an effort to make sure those records are made available to challengers as quickly and cheaply as possible. I could accept a compromise of sticking with formal request, but I want to see these documents made freely available. The SOS would save time an money by posting petitions and the SOS certification reports online instead of responding to individual request. Posting the information online poses no greater privacy risk, because names and addresses are already public information all over the Internet.
On #5, no, we're not agreeing to disagree; I'm saying you're wrong and I'm going to fix your wagon! (Breathe... 1, 2, 3... ;-) ).
Seriously, on #5, what compelling public policy reason is there to reduce the amount of time available to circulate petitions? Even if I had no beef with anything else in this whole package of bills, I contend (and I may have to go to Pierre and testify to this effect) that we can maintain net circulation time by setting the submission deadline at first Tuesday of March and still meet the overall intent of this reform package.
Oh! Sibby! I get it: you mean a registration fee instead of gathering signatures. The idea has its merits, but I still disagree. Petitions are the least of the barriers to running for Legislature. You don't need a lawyer (Annette!) or big money to circulate a petition properly. The big barriers to serving in Pierre are campaign advertising costs and working two months in Pierre into your day-job schedule. Ditto for statewide office: I want that petition process as a civics test, a campaign building activity, and an exercise in democracy.
CH,
On #5, I just want to make sure there is adequate time in the event of challenges and not everyone is as proficient as you.
Cory, Sibby's idea does go well with the "Equal Chaos Under the Law" slogan though, doesn't it? I mean what the heck... throw down 20 bucks and get your name on the ballot. Why not? For guys like me and Sibby, it might be the only way it'll ever happen. Besides, it might get everybody voting again. So what's the real downside?
Oh no, Fleming agrees with me.
Cory, yes it will take more than just getting you name on the ballot. And those costs you bring up are the reasons why crony capitalists control the political process. Can we solve that?
"I never submitted the whole system of my opinions to the creed
of any party of men whatever, in religion, in philosophy, in
politics, or in anything else, where I was capable of thinking for
myself. Such an addiction is the last degradation of a free and
moral agent. If I could not go to heaven but with a party, I
would not go there at all." --Thomas Jefferson to Francis
Hopkinson, 1789.
Put up a post, Sibby.
Troy—closer... closer...
On #5, my point is that we can get not just adequate time but more time for challenges than under the status quo if we adopt SB 67, 68, and 69 with my proposed changes. The "extra" week into March keeps the straight calendar time available now for circulation and/or makes up for the time lost during Christmas break and worse weather.
Bill! Don't go agreeing with Sibby. You'll confuse everyone!
I suppose there could be some useful disruptive power in a couple chaotic rounds of ballots having the names of 50 honyockers with 20-dollar-bills burning holes in their pockets. Stephanie Rissler would have to change debate format to 30-minute battle-royale cage match, followed by actual conversation with the last four candidates standing.
Getting signatures from constituents is a form of public endorsement. If I can't get 50 of my neighbors to sign onto my petition, what business do I have in running. Personally, I think it should be 100.
I agree with Troy on that point of public endorsement. No one should be able to get on a ballot alone. Even under Robert's Rules, every nomination requires at least a second. :-)
Troy and Cory explain how the two party system has to remain in control. And Larry brings forward Jefferson's prediction regarding the party system. The current nomination process it to protect they party system. I learned that when I ran as an independent will being a delegate at the SDGOP convention. I was more than just a little irritant. Even Thune turned his back on me.
It's true, Cory: this man is more than a little irritant.
Steve S., the answer is simple, it has to be a two party system because you, and others who agree with you, have not been successful in convincing the majority to change, nor to implement changes.
It will take a long time, a lot of work, but is not impossible.
Mr. Sibby, I find it impressive that Senator Thune knows of you.
Not one suggestion I make to amend the petition reform proposals is motivated from any desire to maintain the two-party system. While the provision is minor and essentially mandated by the nominating petition deadline, I do not like the provision of SB 69 that shortens by a month the time new parties have to gather signatures to earn official recognition.
While I'm thinking about it, I wouldn't mind finding a way to keep the nominating petition deadline after the Legislative session. Legislators may cast a number of dumb votes after the last Tuesday in February that could inspire citizens to mount primary challenges; if we move the date from end-March to end-Feb, those irate citizens can only challenge their unsatisfactory incumbents by running as Independents.
Mr. H, all these different dates seem to want to squeeze or stretch the same months. It is beyond my brain to understand all these dates but it would be interesting if somebody did an analysis and put in on a calendar sheet that showed old and new dates for deadlines. The tight squeezes would be more visible to people with less comprehension like me.
I tend to agree with Sibby on this. Some minimal registration fee and very few signatures. i
I like Mr. Sibby's idea too. If you want to get signatures make it 5 or 10. But pay something simple like $20 as a filing fee, notarize that you are you and not "Donald Duck" or one of those names that Mr. Walker made up and show your drivers license and you are in like Flynn. There might be a whole slew of people on the ballot but hey, that would stretch out the accidental and random "I voted for Howie" votes and would make the more serious candidates with some money have to campaign and get their signs on posts and things.
Minneapolis had a $20 fee or a certain number of signatures on petitions to run for city office. In 2014 there were 35 candidates on the general election ballot. Thirty-five.
The first thing the new city council did was change the fee to $500 for some offices, and $250 for others. Or a %age of voters on the petition.
Oh yeah, one of those mayoral candidates was legally named Captain Jack Sparrow. Seriously.
sb69 looks like a bad bill
Election reform was the perfect area where Shantel Krebs could bring 'innovation' to an office that needs it so much. There is much room for improvement, yet she's demonstrating that she's more interested in perpetuating the same old establishment-bias, anti-grassroots approach to administering elections.
There is no reason whatsoever why the SOS has to charge unreasonable amounts to access petition documents. As one commenter put it, they could scan the documents and make them available to the public!
I'm extremely worried that Shantel and the GOP are going to chip away at the citizen petition process as much as they can every year until it's gone all together. What a shame, considering SD was the first state to create the citizen initiative process.
Cheers!