Smoking ban fight heats up

PIERRE - The complicated legal battle intensified Tuesday over whether there will be a referendum on the 2010 election ballot on South Dakota’s new ban against smoking in bars, casinos and restaurants that serve alcohol.

Mike Trucano of Deadwood, one of the leaders in the petition drive seeking the statewide vote, filed a sworn statement in state circuit court that opens a new line of argument about why 2,552 signatures were declared invalid by Secretary of State Chris Nelson.

State law requires petition circulators to verify before a notary public or other person authorized to administer oaths that all laws were followed in the signature-gathering process. The 2,552 signatures are in question because the expiration dates of notaries’ commissions were listed incorrectly on the verifications.

The fate of those signatures could decide whether there is a referendum or the expanded ban takes effect without a public vote. Nelson declared Thursday that the petitions were short 221 signatures.

“We were informed by the Secretary of State’s Office that all notaries involved in the 2,552 signatures were fully commissioned notaries public, that is, none had expired commissions,” Trucano said in his affidavit to the court.

He added, “We petitioners have not yet received the names of the notaries determined to have provided incomplete or improper information, or the petition itself.”

Altogether, Nelson declared 8,845 signatures invalid. They fell into 26 categories.

The attorney for the four petitioners - Trucano, Don Rose and Pete Thompson of Sioux Falls, and Mark O’Neill of Henry - filed court papers on Monday arguing there is no state law or state rule requiring the notary public to correctly list the expiration date of the notary’s commission on the petition paperwork.

The attorney, Sara Frankenstein of Rapid City, said the court must determine whether there is a legal requirement for an accurate expiration date, and if so, whether the expiration dates used on the verifications were sufficient to substantially satisfy the requirement.

Circuit Judge Mark Barnett issued an order on Monday putting the ban on hold until the court case is finished. No date has been set yet for a hearing.

Frankenstein raised several other arguments in her filing, including whether 255 signatures of inactive voters should be allowed. She said state law requires that petition signers be qualified voters and doesn’t specify they be active voters.

The petitions needed 16,776 valid signatures. Of the 26 categories of signatures declared invalid, the incorrect expiration date was the second largest. Here’s a look at the number in each of the 26 categories:

  • Not registered to vote, 3,578.
  • Incorrect expiration date of notary commission, 2,552.
  • Incomplete date in circulator verification, 449.
  • Blank or crossed-out line, 439.
  • Invalid or missing notary seal, 409.
  • Invalid or no printed name of circulator, 375.
  • Incomplete or no residential address, 337.
  • No county of registration, 312.
  • Inactive registration, 255.
  • No date of signing, 238.
  • Duplicate signatures, 235.
  • Illegible or no printed name, 225.
  • Use of P.O. box in Class 1 city for address, 147.
  • No notary signature, 136.
  • No signature by “signer,” 74.
  • Invalid date of signing, 72.
  • No expiration date for notary, 70.
  • Signed after circulator verification, 69.
  • Circulator notarized petition, 42.
  • Missing complete notarization, 42.
  • Out-of-state address for circulator, 20.
  • Incomplete address for circulator, 12.
  • Signer notarized petition, 2.

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