Makenzie Huber, South Dakota Searchlight
South Dakotans who say they’re concerned about election security are racing to require counties to hand-count ballots in this year’s general election. Petitions are circulating or have circulated in 18 of the state’s 66 counties, according to a group coordinating the effort, and the group said people in eight more counties have asked for information about the petitions.
State law allows citizens to petition their local governments – counties and municipalities – to put a proposed law to a public vote. The petitions require signatures from 5% of registered voters in a jurisdiction.
Petitions asking voters to require hand counts have been completed and turned in to Lawrence and McPherson counties. Based on current law, county commissioners must accept the petitions once signatures are verified and put the issue to a public vote at the primary election June 4 rather than schedule an earlier special election, since the primary will be less than three months away after county commissions accept the petitions.
If local voters approve the initiatives, hand-counting would then be required in their jurisdiction during the Nov. 5 general election.
Hand counting to be used in 2024 election
Some South Dakotans have been pushing for election reform and hand counting since the 2020 election, after then-President Donald Trump lost and claimed that the 2020 election was “stolen” from him. Trump filed more than 60 lawsuits contesting either the election or the way it was administered. None of the cases succeeded, and he’s currently under criminal prosecution for allegedly attempting to subvert the election.
The latest effort in South Dakota is organized by South Dakota Canvassing Group, which offers draft language to petition circulators that would require counties to use only paper ballots, to hand count all ballots, to prohibit electronic voting devices except those needed for disabled voters, and to prohibit the use of electronic tabulating machines.
Some people pushing for more election security believe tabulators and other electronic machines used for elections are vulnerable to hackers and cheating and are connected to the internet. Auditors and other election officials say the machines are not connected to the internet and are secure; in fact, South Dakota law prohibits connecting tabulating machines to the internet.
Jessica Pollema, president of South Dakota Canvassing, said a “whole new breed of citizen has awakened” after the 2020 election, and they’re determined to change election laws.
“These citizens who have been disenfranchised by their county commissioners – not listening or addressing their concerns – found another way to bring it to a vote of the people of South Dakota,” Pollema said.
Lawrence County resident Nichole Braithwait said she’s been trying to meet with her county commissioners for months regarding election concerns, but she’s been met with resistance. So, she and another resident in Butte County turned to the petition process to force the conversation.
Braithwait has been circulating her petition since fall 2023 and turned in a stack of roughly 1,300 signatures to the Lawrence County Auditor’s Office last Monday. A copy of her petition was posted a couple of weeks ago on the South Dakota Canvassing website and has been widely shared in the weeks since. South Dakota Canvassing held a hand-counting demonstration at the state Capitol earlier in the current legislative session.
Three South Dakota counties hand-counted ballots in all or some of their precincts in the 2022 election: Fall River, Butte and Tripp counties, all of which have populations below 11,000. Both methods of counting proved accurate enough, though hand counting took several election workers and took hours to complete.
County commissioners and auditors across the state have continued to field accusations that electronic tabulators aren’t secure or accurate, and that they should invest the money and manpower to hand-count ballots.
Fall River County Commissioner Deb Russell, who has served on the board for 14 years, motioned during the commission’s Feb. 15 meeting to hand-count ballots at the June primary, even though she told South Dakota Searchlight she is confident tabulators are accurate and faster. The motion passed unanimously.
“I’m not sure the people we’re dealing with believe that anything but a hand count would work,” Russell said.
Russell said commissioners anticipated there’d be another push for hand-counting ballots in the 2024 election, so they increased the auditor’s budget to cover extra costs.
Fall River County Auditor Sue Ganje, who has served as auditor since 2005 and has been involved with elections since 1984, said she doesn’t expect any problems with hand counting during the primary and “wasn’t going to argue” against it.
“I knew it was going to happen. I knew how it was going to come out,” she said.
Ganje hopes to use a tabulator to audit hand-counting during the primary election to prove the accuracy of the machines, though she is waiting for auditors to approve that.
Bill would let commissioners reject petition: ‘They can see us in court’
The petitions turned in to Lawrence and McPherson counties not only ban tabulators and require votes to be hand counted in elections, but also prohibit the use of all electronic devices in elections – including devices to help disabled people vote. South Dakota Canvassing has since updated its petition templates with an exemption for devices used by disabled people.
But the two petitions turned in to county auditors last week violate state and federal law, some legal experts say.
State law requires an electronic ballot marking system be available if a candidate for a federal office is on the ballot.
The Help America Vote Act of 2002 requires that each polling place for a federal election provide a voting device allowing voters with disabilities to vote independently and privately, according to the Secretary of State’s website.
In South Dakota, all counties are equipped with EXPRESSVote machines for disabled voters. Voters who are blind or have poor eyesight can use braille to read the ballot, can increase the font size on the screen, or listen to audio explanations of the ballot information. Voters who can’t hold a pen can press the screen to fill out their ballot.
“The ExpressVote keeps no record of votes,” according to the secretary of state website. “They are a paper-based electronic ballot marker – an ‘electronic pen.’ Most voters find it to be intuitive and user-friendly.”
The machine does not allow overvoting and is not connected to the internet.
Lawmakers are working in the final week of the 2024 session to pass a bill that would allow county commissioners or city finance officers to reject a completed petition if they decide it violates state or federal law. Petitioners could appeal the decision in court. The bill, if passed with an emergency clause, would apply to Lawrence and McPherson counties.
“We want to make sure we’re not passing something that we know from the start is illegal, because then the county or city will have to defend something they know is illegal,” South Dakota Association of County Commissioners lobbyist Eric Erickson told lawmakers in a committee hearing for the bill last week. “And often, if you’re messing with someone’s constitutional rights you’re stuck paying attorney fees on both sides.”
The bill passed the Senate 27-6 Monday morning and will go to the House next, where it’s expected to receive action during this final week of the legislative session.
Braithwait said the bill is a way to stifle South Dakota Cavassing’s voice and “shut us down.” Braithwait and other members of the group weren’t aware of the bill before it was amended and voted on in a committee last week, meaning they weren’t able to testify against it.
“It’s unfortunate that legislators want to have this visceral reaction to citizens that are exercising their rights and they’re trying to change the law halfway through this,” Braithwait said. “We will continue petitioning and they can see us in court.”
However, Braithwait said she hopes to clarify and amend the language of the Lawrence County petition that has already been turned in to make an exception for EXPRESSVote machines and allow disabled voters to use them. If county commissioners don’t allow her to make such an amendment, then she plans to continue with the petition as planned and will take the matter to the courts.
But the petitions filed in Lawrence and McPherson counties aren’t “legally sound,” said Sara Frankenstein, a private lawyer specializing in election law.
In addition to the possible violation regarding disability rights, several other requirements outlined in the petition don’t “jibe” with the language in state statute, which could create problems. For example, she said, the way “tabulation” is written in the petition means something different than the definitions in state law.
“If that petition passed and was called to a vote, then we’d have to campaign on the legality of something that shouldn’t ever be put to a vote anyway,” Frankenstein said. “What a waste of campaign dollars that these poor people are going to have to put up to not pass something illegal.”