Hand Counting Statute, County Attorneys, and the SOS.
The chapter of South Dakota State Law that deals with elections is Chapter 12. It has 28 sections with many statutes to interpret and understand. Election law is complicated and it’s implementation carries the full weight of a functioning representative republic. It can be confusing and hard to understand.
What isn’t hard to understand is the sections of the law and administrative rules that allow for hand counting at the precinct. It’s pretty clear.
SDCL 12-16-32 - 12-16-40 State laws for hand counting in the precinct.
SDCL 12-15-14 Counting Boards at the precinct.
Administrative Rules 5:02:16: Describe the precinct level counting board, the public vote count, and the tally sheets to be used for recording VOTES.
Volunteers have poured over the code and rules attempting to find the statute or rule that allows the state/auditor/precincts to abandon their duties of hand counting at the polling location before transporting the ballots to the county courthouse for tabulating with the machines. We thought you may be interested in the following exchange:
The new elections director, who just happens to be Lt. Governor Larry Rhoden’s son Reggie Rhoden answers:
Volunteer following response:
As you might imagine, the volunteer is still waiting for a response as the SOS office can’t seem to find it.
The law the SOS office is trying to find is this:
12-19-52. Electronic voting systems. In those counties which have adopted an electronic voting system, counting shall be as prescribed in chapter 12-17B.
Oddly enough, it is hidden in the absentee voting section. No wonder it’s hard for the SOS office to find. One could ask, does this mean only the absentee ballots were meant to be tabulated at the courthouse with machines?
SDCL 12-17B-3 Any governing body having supervision of elections within any political subdivision may adopt, experiment with, or abandon any automatic tabulating or electronic ballot marking system approved for use by the State Board of Elections. What does this say to you?
It is interesting, when Ben Kyte was the Auditor of Minnehaha County, amidst a barrage of public records requests and pleas from the citizens for the county commission to hold a public hearing and to return to hand counting, the County’s position was that the Auditor was in control, and he could do whatever he wanted with the elections. They said the commission had no authority over the auditor. Ben Kyte wanted online voter registration, online voter registration updates, a tabulator in every precicnt, drop boxes, and expanded absentee. Just the opposite of real election integrity in the light of all that has been exposed in the last two years.
The County Commission holds the power of the purse. They authorize financial expenditures and in larger counties, the chair signs the contracts of the county with approved vendors. The County Commission also canvasses the election and certifies the vote. Both of those responsibilities delegated to the commission make them directly liable for the conduct, accuracy and final result of every election held in their county.
With a new Minnehaha County Auditor at the helm, who prioritizes real election integrity, the County’s position is directly the opposite of what is was when Kyte was in office. Now the State’s Attorney office interprets 12-17B-3 as the commission being the “governing body” and the Auditor supposedly has no authority. Isn’t that interesting? The State’s Attorney and staff did not change; their opinion did. Elected officials have noted the change in interpretation.
This leaves the citizens of Minnehaha County wondering if the State’s Attorney is working on behalf of the elected officals, the citizens, the constitution and in the interest of upholding the law, or is the State’s Attorney office a political entity attempting to weild it’s power to ensure it’s political agenda is carried out? When the interpretation of the law changes with the situation, the answer to this question is pretty clear.
How many times have we heard “Ask the legislature to change the law” when requesting a return to hand counting? We’ve heard this countless times. The fact is, the law already allows for hand count. Nothing needs to change, other than the understanding and perceptions of those who are responsible for running our elections.
Monae Johnson ran for Secretary of State on an Election Integrity platform. She repeatedly told her supporters she was going to reform the election process in South Dakota with improved transparency, audits, and a return to hand counting. This November 23, 2022 article says Johnson wanted “Changes like an audit of every precinct in South Dakota and a state-level push to convince county auditors to hand-count all ballots. She’s also suggesting that lawmakers consider barring the use of tabulator machines altogether.”
Monae Johnson has completely abandoned her promises of auditing every precinct and a return to hand counting as her closed door summer study seems to be looking to a risk-limiting audit, and a recount with another machine. Johnson’s Deputy SOS Tom Diedrick and Election Director Rachel Soulek testified against the proposed election bills during the 2023 session. This is a far cry from campaign promises and personal conversations supporters had with Johnson, that they won’t soon forget. So, what happened to Monae Johnson?
A recent Board of Elections meeting showed the citizens remember her promises, and will continue to be engaged and participate in this process.
During the public comment period after the hearing, one of those who came in with the South Dakota Canvassing Group, Mike Assman from Mission, spoke up. He and his wife, Darla, donated $8,000 last year to Johnson’s campaign. They were one of her largest contributors.
“All of this technology brings chaos,” Assman, a former county commissioner, said. He compared voting to putting money in a bank, then being told you can’t know how much you really have. “Now how long would you be at that bank?” he asked.
“It’s not headed anywhere good, guys. It could be good,” he said about how South Dakota relies on technology for election administration. “It’s a joke. It will never be right. We will never trust it. We will never trust it.”
The BOE meeting was held in a tiny conference room, where citizens stood or sat on the floor for hours, despite the fact there is a large conference room with plenty of room for observers in the back of the building. The prior meeting had about 20 citizens attend who were crammed in or had to stand for the entire meeting. Linda Lee Viken, former BOE member stated at her last meeting, which was Johnson and Diedrick’s first meeting, that they had never held a meeting in the tiny conference room that was selected, as she was sitting in the large conference room waiting for others to show up.
Apparently these campaign supporters of Johnson’s were so intimidating that the State Patrol was called to monitor the situation, and Johnson and Diedrick were walked out with an armed security guard. Wow. Now isn’t that just a slap in the face.
Part of promised transparency is making the cast vote records public. Monae Johnson promised the release of the cvr’s and to provide each county that does not have the Election Management System with one in order to be able to read the cast vote records. (62 of 66 counties) That promise is off the table as that money is going to be used to upgrade the Total Vote system to the tune of $4.5 million.
Fred Weidner of Tripp County has made two trips to Pierre to ask Secretary Johnson to fulfill her promise of making the cast vote records public and sign a document confirming her promise. He’s returned back to Tripp County with no signature on his document.
Whether or not Johnson decides to follow through with campaign promises, the fact is the county decides how to run the elections. And whether the Auditor or County Commission decides is apparently up to the State’s Attorney’s interpretation of the law. BUT, the Auditor and the County Commissioners work for the citizens. They answer to YOU. If you want a change, you need to make sure your representation is working for you.
The majority of the electorate do not trust the elections. A recent Rasmussen poll said 62% of all voters don’t trust the elections. In this week’s Gateway Pundit article, another Rasmussen phone poll says 66% of voters believe the 2024 election will be affected by cheating. 80% of Republicans don’t trust the elections to be fair. Assman’s quote pretty much sums it up.
So how can our elected Republican auditors, commissioners, legislators, Secretary of State, and Governor continue to stick with the false narrative that South Dakota is the gold standard in elections?
Read Robert Borer’s substack here for more on the gold standard of elections. It’s hand counting. Hand counting in the precinct provides local control, chain of custody, local oversight, transparency, equal party representation, and restores trust in our elections.
Paper Ballots
Hand Counted, at the precinct
Limited Absentee
One Day Voting
State Issued Picture ID
That’s the gold standard.