SD smoking ban legal fight focuses technicality

PIERRE, S.D. — The legal battle over South Dakota’s strengthened smoking ban focuses on a judge’s decision about whether technical errors were substantial enough to toss out more than 25,000 petition signatures calling for a statewide public vote on the issue.

Bars and gambling businesses that oppose the ban collected signatures to force a public vote in the November 2010 election, but Secretary of State Chris Nelson eventually rejected the petitions, ruling that too few valid signatures were submitted. The petitions fell 221 signatures short of qualifying for the ballot, he said.

The ban’s opponents then asked a circuit judge to order Nelson to reinstate some of the signatures and place the referendum on the ballot.

The 2009 Legislature passed the law to ban smoking in bars, Deadwood casinos and video lottery establishments. The measure, which would extend a ban that has outlawed smoking in most workplaces and public areas since 2002, was to take effect July 1.

But the coalition representing bars and casinos submitted 25,400 petition signatures on June 22 calling for a public vote, which would delay the ban from taking effect pending the outcome of the 2010 general election vote. Nelson originally checked a random sample of 5 percent of the signatures and declared the coalition had more than the 16,776 signatures required to put the measure on the ballot.

Ban supporters then challenged thousands of the signatures, and the secretary of state ruled that 8,845 signatures were invalid, leaving the referral effort 221 signatures short.

Be careful of the fine print on the ballot. The tax exempt American Cancer tricked the voters into Ohio into voting for a ban with exemptions, only to have them removed AFTER they were voter approved….
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The coalition’s lawsuit says Nelson rejected 2,552 of the signatures because some notary publics who witnessed signatures by petition circulators put down the wrong expiration dates for their notary commissions.

The petition circulators substantially complied with the law, and that’s enough to make the signatures valid, the lawsuit argues.

“The notary publics in question have provided sufficient information to be contacted by anyone seeking to establish the genuineness of the petition’s signatures,” wrote Sara Frankenstein, a Rapid City lawyer representing those seeking a public vote.

Nelson said his office can only apply the law and rules as they are written. Previous cases have established that only a court can determine if compliance was substantial enough to make petitions valid, he said.

“We don’t have the authority to determine substantial compliance,” the secretary of state said.

South Dakota law requires that people circulating petitions must sign verifications stating that they followed state law and believe the people who signed are qualified South Dakota voters. The verification must be witnessed by a notary public or someone else authorized to administer oaths.

The lawsuit said that even though the notary publics in question gave the wrong expiration dates for their commissions, no law or rule requires them to accurately indicate the expiration date of their commission, the suit said.

Also, the document says state law provides that petitions “shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality.”

Earlier court cases said the omission of something not specifically required by law or rule should not be considered an essential element for verifying petitions, according to the lawsuit.

One response to “SD smoking ban legal fight focuses technicality

  1. Michael J. McFadden

    Antismokers will use every trick, technicality, distortion, and lie that they think they can get away with in order to get their smoking bans and taxes through. For a great example of the sort of games that are played in bending the truth read Jacob Grier’s May 27th column and the aftercomments to it at:

    Note how antismoking researchers bid for million dollar grants by promising antismoking results BEFORE they even do the research, and then see how they deliberately hide important data in order to fulfill those promises. Read a bit on the Ohio ban vote and see how they tricked the voters by having the ballot language clearly state that family owned businesses and private clubs would be exempt while keeping the wording that made such exemptions impossible hidden from the voters at the ballot box and you’ll see the same kind of dirty politics that they’re playing at in South Dakota. , . ,

    And if the Free Choice folks *do* manage to get a vote on the ballot, watch for the millions of dollars that will be spent by the ban folks to buy the vote. , . ,

    Michael J. McFadden,
    Author of “Dissecting Antismokers’ Brains”

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