On August 30, U.S. District Court Judge Roberto Lange ruled from the bench in De La Fuente v Krebs, 3:16cv-3035. He said the state cannot invalidate signatures because the signer failed to fill in the “county” blank. The rationale is that no city or town in South Dakota is partly in one county and party in another. Therefore, the Secretary of State can easily know which county the signer lives in, by seeing what town or city the signer shows. The Secretary of State uses random sampling so the validation process is not very difficult for a petition that only requires 2,775 valid signatures.
But Judge Lange upheld another restriction, which is that sheets of signatures are entirely invalid if the Notary Public made a technical error when notarizing that sheet. De La Fuente had argued that notarization is not needed. But in South Dakota, notaries don’t charge to process ballot access petitions, so the judge felt that the notarization requirement is not a severe burden.
De La Fuente doesn’t quite have enough valid signatures, even though he won on the issue of signatures without a county listed. The case remains alive and it is likely De La Fuente will amend his complaint to also attack the South Dakota ban on out-of-state circulators for candidate petitions. It will be difficult for South Dakota to defend that restriction, because South Dakota allows out-of-state circulators to work on a petition to qualify a new party.
Sioux Falls is in Minnehaha and Lincoln counties.
The SOS used a 5% sample, and rejected 85 of 212 signatures in the sample, which is 40%. There is apparently no dispute about invalidity of 67 of the signatures.
3 were invalid because the circulator gave an incomplete address.
5 were invalid because the notary’s commission had expired (is this a technical error)?
3 were invalid because they were on a photocopied petition sheet.
7 had the incorrect or no county.
In De La Fuente’s complaint he says that because South Dakota has a statewide database of registrations, the county is not necessary. But that may assume that the database is searchable by street address.
The attorney for the Secretary of State in court yesterday said that no town or city in South Dakota is in more than one county. Maybe Jim should have been at her elbow, helping her to win the case, because Jim just loves to injure minor party and independent candidates.
Why would Ellie Bailey be making a statement one way or the other?
Did this come up during examination of Kea Warne?
I’m dubious that a South Dakota official would not know about Sioux Falls. Besides there are 8 cities that straddle county lines, including one that is in three counties.
Perhaps Richard Winger misunderstood the question. In California, cities do not cross county lines. Perhaps that prejudiced his hearing or recollection.
Why were some of the petition sheets photocopies, and why were some notarized by a notary with an expired commission? It sounds like the injuries to De La Fuente were self-inflicted.
The judge said that he was not ruling on the county issue.
My source is someone who was in the courtroom. Jim, have you talked to anyone who was in the courtroom? Have you seen the transcript? The judge’s order of August 31 is only one sentence and says, “Summary judgment enters for Defendants.” But what the judge said orally is that there is no important state interest in disqualifying signatures of signers who omit their county. It is likely the Secretary of State will remember that. There will be a lot of changes to South Dakota ballot access laws in the legislature next year, due to this case and the Libertarian-Constitution case.
I have not seen a transcript. Has the court reporter completed it?
I have seen the minutes from the hearing where the judge indicated that he was not ruling for the Defendants on the issue of county omissions.
Whether any cities in South Dakota straddle county lines doesn’t even seem like it is the relevant fact issue. The petition has a mailing address, and I suspect a lot more Post Office locations straddle county boundaries than do cities. The affidavit from the SOS, says that seven counties were in error, rather than missing.
This whole bit of the judge questioning the assistant attorney general, when the Deputy SOS/Head of the Elections Division testified for a couple of hours – I think she was the only witness – seems quite odd. Why wouldn’t De La Fuente’s attorney have asked her?
If you were going to do a statewide petition in South Dakota, surely you would got to Sioux Falls. And the petitions that were submitted as exhibited show Sioux Falls addresses with both Minnehaha and Lincoln County.
Your source may not have understood the proceedings, or something has got garbled in transmission,