Push for election hand counts spreads despite rejection in Lawrence County

An effort to reduce the use of technology in elections is spreading to additional South Dakota counties.

Petitions have been filed in two counties and are circulating in at least 21 more of the state’s 66 counties to place measures on local ballots. The petitions need signatures from 5% of registered voters in the county.

The petitions vary by county, but if approved by local voters, the most wide-ranging petitions would require hand-counting of votes, prohibit the use of electronic vote tabulation machines, and prohibit electronic voting devices except those needed for disabled voters.

Petitions circulate in at least 18 counties to eliminate vote tabulators and require hand counting

While the Lawrence County Commission on Tuesday denied a petition that was filed last month, the McPherson County Commission is considering an ordinance that aims to protect the county from potential legal costs if a petition that could result in lawsuits passes a public vote.

Some other county commissions have discussed or already decided to proactively switch to hand counting ballots ahead of the June 4 primary election, without being forced by petitioners.

Election officials have said the petitions are driven by unfounded suspicions about voting technology, including a fear that vote tabulating machines can be hacked over the internet. But state law prohibits internet connections for tabulating machines, and county auditors say the devices are not connected. 

A push for election reform and hand counting has grown since the 2020 election, after then-President Donald Trump lost and claimed that the 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.

Lawrence County denies petition based on Supreme Court precedent

The group coordinating the petition drive is a nonprofit, South Dakota Canvassing. Its early petition template included bans on all voting machines. After being alerted that federal and state laws require voting devices for disabled people, the group changed its sample petitions online to exempt those devices.

By then, the original version of the petition had already been turned in to Lawrence County, making it the first county to receive one of the petitions with the necessary number of signatures. The Lawrence County Commission denied the petition at its Tuesday meeting in Deadwood.

State law says the county has to submit the petition’s proposed ordinance to a public vote after it’s filed with enough valid signatures. But Lawrence County commissioners denied the petition on the grounds that it reaches beyond the commission’s jurisdiction, since the county wouldn’t have the power to defy federal law, said Sara Frankenstein, a Rapid City-based lawyer specializing in election law.

“Our South Dakota Supreme Court has held that despite the language of that statute, if that initiated petition or initiated ordinance is attempting to accomplish something outside the powers of your county commission, it’s proper to reject the petition and not put it on the ballot,” Frankenstein said.

To make that right “easily identifiable” in state law, Frankenstein was behind an effort to pass a bill this legislative session that would have expressly authorized local governing boards to deny petitions they consider illegal. The effort failed in the House with a 35-35 vote.

Nichole Braithwait, the lead petition circulator in Lawrence County, plans to ask a court to order the Lawrence County commissioners to hold an election on the filed petition.

There are at least 21 counties where petitions are circulating in addition to the petitions already turned in to Lawrence and McPherson, according to South Dakota Canvassing. Braithwait said residents from another 12 counties have inquired about circulating similar petitions.

“This is not a fringe group,” Braithwait said. “We’re not some small group of people who are concerned about these issues.”

McPherson County proposes ordinance saddling petitioners with legal expenses

McPherson County, which has its county seat in Leola, received a petition with the same language including a ban on all voting machines days after the Lawrence County petition was filed. 

McPherson County commissioners have not considered the petition yet, but are considering an ordinance that would make petition circulators and sponsors pay for all legal fees if the county is sued because of an initiated ordinance’s passage. The commission’s proposed ordinance was introduced and scheduled to be handled at its April 2 meeting. The citizen petition will be considered at the April 2 meeting or in a special meeting later this month.

Bill allowing counties, cities to reject initiative petitions fails by one vote

The ordinance doesn’t stop the petition from being considered by the commissioners, said McPherson County Auditor Lindley Howard. 

“I think most people when going to a voting booth think that either the yes or no is OK to vote for,” Howard said. “It’s not fair to the voters that the ‘yes’ in this case is a double-edged sword. Vote yes here and you’re imposing a possible legal burden on the county — and the taxpayer — right now.”

Howard said she thinks petition circulators are acting prematurely, since the state will operate its first post-election audits after the June primary, which will hand count ballots in 5% of voting districts to compare results produced from electronic tabulators. The effort is meant to encourage confidence in electronic tabulators and appease residents seeking hand counting of ballots.

Braithwait, meanwhile, said the ordinance to “push off court costs onto the citizens” is wrong.

“They’re sending us on a ‘lawfare’ scavenger hunt to figure out how to have the courts intervene,” Braithwait said. “We’re going to fight it and we’re going to pay for it.”

Tripp County discusses hand counting, Fall River and Gregory counties vote in favor

Fall River County, which has its county seat in Hot Springs, is the first in South Dakota to commit to hand counting ballots in the June 4 primary election. The commission voted unanimously at its Feb. 15 meeting, though Commissioner Deb Russell told South Dakota Searchlight she is confident tabulators are accurate and faster.

“I’m not sure the people we’re dealing with believe that anything but a hand count would work,” Russell said.

Tabulator catches human error in Tripp County post-election audit

The Gregory County Commission, seated in Burke, voted March 6 to use hand counting for the primary and general elections.

Tripp County, which was the only South Dakota county during the 2022 election to hand count all of its ballots, also discussed hand counting ballots at its last meeting in Winner, though auditor Barb DeSersa argued against it.

DeSersa was awake for 40 hours straight between Election Day and the day after in 2022, with a significant amount of that time supervising volunteers hand-counting ballots. Several races had to be recounted by volunteer counting boards – sometimes three or four times that night.

“I feel pretty good that we won’t be,” DeSersa said, “but we still have plenty of time to make those decisions.”

A hand counting petition is circulating in Tripp County.

EDITOR’S NOTE: This article was corrected to reflect that the McPherson County Commission has not yet had a first reading of its legal costs ordinance.