SDCL 12-17b-3 - Authority of governing body to adopt, experiment with or abandon system...

Proving to be quite an interesting election law!

Trump won. Too big to rig proved to be too much for them to overcome. It won’t be like that in the future. He is a once in a lifetime movement.

The 2020 election was stolen, election machines were a part of the steal, and this FACT hasn’t been addressed and resolved…yet!

I’m still fighting.

I’m still fighting for us all.

I’m still in court.

I’m still in court over an illegally rejected, perfectly lawful petition to bring it to a vote of the people to choose whether they would like tabulation machines to continue to count their vote or if they would prefer to change to hand counting the vote…you know with people, who can examine voter intent, where the process isn’t a secret, where there is full transparency.

Before I lay out the story of our petition and SDCL 12-17b-3 for you, this is today’s revelation regarding the law. The auditors around the state have apparently brought a request to the Board of Elections to change SDCL 12-17b-3 to the following:

Now the auditors want to be the ONE to decide which election system we use.

ONE person with total authority over THE SYSTEM which helps keep our country free. THE PEOPLE should get to choose which system they see fit in using! This law has proven to be quite controversial! Multiple counties around the state have been dealing with this…we were the first here in Lawrence County to turn in the petition and are ground zero for the fallout.

Here are the basic facts of our case:

We tried to engage Lawrence County on the issues with election machines for months. They ignored us.

Follow and READ over 100 articles by SDCanvassing Group that detail very thoroughly the FACTS and our fight here in South Dakota that forced us to the petition as a last option:

To be clear…our commissioners can make the decision to do what we are asking them to do in the petition via SDCL 12-17b-3 Authority of governing body to adopt, experiment with or abandon system….AGAIN, they can make the decision to hand count all on their own.

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. Any governing body may use the system in all or some of the precincts within its jurisdiction or in combination with any other type of voting system approved for use by the State Board of Elections.

The last time this law was amended was in 2018. Here is that bill, as amended and signed into law: https://sdlegislature.gov/Session/Bill/8611/48121

The parts I’d like to note are as follows:

Hand counted, paper ballots ARE an APPROVED election system, both in this state AND at the Federal level. HAVA does not prohibit hand counting and it doesn’t mandate we use any type of machine. (More later on that!)

Now, here are glossary terms straight from ES&S:

Because we were ignored by Lawrence County over concerns related to electronic voting systems, we filed a petition that would prohibit the use of tabulators and electronic devices, with the overall intent being to bring it to a vote of the people to decide if they wish to hand count or allow machines to continue to count our votes.

The petition was filed in time to offer us a special election to vote on this before the PRIMARY election was to take place in June 2024.

The petition was submitted with the required number of signatures per SDCL 7-18A-9. Initiated measures--Number of voters required.

The right to propose ordinances and resolutions for the government of a county shall rest with five percent of the registered voters in the county, based upon the total number of registered voters at the last preceding general election.

We submitted approximately 1300 signatures.

Per SDCL 7-18A-13, the Commissioners were to put the initiative petition to a vote of the people. SDCL 7-18A-13. Board action on initiative petition--Submission to voters.

If a petition to initiate is filed with the auditor, the auditor shall present it to the board of county commissioners at its next regular or special meeting. The board shall enact the proposed ordinance or resolution and shall submit it to a vote of the voters in the manner prescribed for a referendum within sixty days after the final enactment. However, if the petition is filed within three months prior to the primary or general election, the ordinance or resolution may be submitted at the primary or general election.

Before we even turned our petition into the Lawrence County Auditor, Lawrence County (they knew we were working on it) started working with “expert election lawyer” Ms. Sara Frankenstein to address “this issue.” We turned in our petition and were met with what I describe as a total meltdown by the county commissioners, legislators, and Ms. Frankenstein as they all went to work against the people to produce legislation that would do two things, mandate that commissioners only make the choice of what voting system they choose to use at their first annual meeting of the year (which would have been after the Nov general election), and two, add a new provision that would allow county commissioners to reject petitions for any reason, effectively making them the judiciary.

Here is that initial bill language:

We knew from watching the hog-house of HB1140 in the Senate State Affairs Committee, with no public knowledge but three lobbyist groups in attendance, there was a coordinated effort going on. Sen. Casey Crabtree said “we have a plan” with one of these vehicle bills. Eric Erickson, lobbyist for SDACC said this was a response to an issue that arose yesterday, addressing how you do the election process, and it was a “very immediate issue that just popped up.” Yvonne Taylor with the SD Municipal League said they needed “a fix for this problem.” Kris Jacobsen with SDACC stated we may be “depriving citizens of rights.”

The huge effort late in the 2024 legislative session to pass HB 1140 is clear evidence of the unconstitutionality of rejecting legal petitions submitted to counties. Rep. Sue Peterson said it best: You can’t fix something that you think is unconstitutional by doing something unconstitutional.

The current statutes governing local initiated measure petitions require all such petitions with the requisite signatures to be placed on the ballot: SDCL § 7-18A-13. Board action on initiative petition--Submission to voters and SDCL § 9-20-4. Presentation of initiative petition to governing body--Submission to voters.

Again, if passed, HB 1140 would have given commissioners total authority in determining whether to reject or accept any petition.

Introduction of this bill was unnecessary if the county commissioners already had the authority to reject petitions. Common sense, logic and legislator testimony bear witness to the fact that the reason the bill was created was to give the county commission a legal avenue to deny petitions. WHY? Because there is NO legal avenue for the county to deny verified petitions, they still have to hold an election.

HB1140 lost in the House in a 35 to 35 tie vote. The final version of that bill only included the provision to reject petitions. Had it passed it would not have changed SDCL 12-17b-3 with the updated annual language from the original bill verbiage.

Despite the bill failing, upon recommendation from Ms. Frankenstein, our county commissioners rejected our petition anyway.

According to existing law, SDCL 7-18A-13, Board Action on Initiative Petition – Submission To Voters, it is NOT within the commissioners’ discretion to choose to NOT obey this law and reject the petition or to only obey it when is aligns with their personal interests, be it financial, political or when they think it might violate statutes. They shall submit it to a vote of the people. There is no lack of authority to act. Their duty to act is unequivocal and ministerial to the will of the People.

Their primary reason for rejection? They believe that removing the ExpressVote system breaks SDCL 12-17B-6.1, a “conflicting” law from 2006, twelve years before the current verbiage in 12-17b-3, which clearly states they can abandon use of Ballot Marking Devices…which is what ExpressVote is classified as, per ES&S.

So there is the perceived conflict. What is the legislative intent of 12-17b-3 that states counties can abandon use of THIS system?

Further, this law 12-17b-6.1, IMO, is unconstitutional as it federalizes our elections and the legislators who brought it didn’t fully understand themselves the “intent” of HAVA. This is what HAVA actually covers as related to the issue:

Federal voting law, specifically the Help America Vote Act (HAVA) of 2002, mandates that at least one accessible voting system be available in each polling place for federal elections. This requirement is intended to ensure that voters with disabilities have the opportunity to vote privately and independently. Ballot Marking Devices (BMDs) are often used to meet this requirement because they can provide various accessibility features such as audio ballots, tactile input, and screen adjustments for voters with visual impairments or other disabilities. However, the law itself does not explicitly mandate the use of BMDs but rather requires that there be an accessible method for voting. Therefore, while BMDs are a common solution, other accessible voting systems could also be used to comply with federal law.

South Dakota has ALL the laws in place to assist disabled voters without the use of BMDs. Our auditors use them ALL the time when they go to assist the elderly or disabled in assisted living centers via the absentee process AND when those with disabilities at the precinct for in person voting invoke their right to assistance with marking their paper ballots, the team there make it happen.

So from my perspective WE ARE ON THE RIGHT SIDE OF THE ISSUE.

What we are asking in our petition does not break a single state or federal law. SDCL 12-17b-3 which gives commissioners the freedom to choose which system they want to use, further supports that argument. That’s why the commissioners via Ms. Frankenstein worked to change the law. HAVA does not prohibit hand counting and has protections for it as a paper ballot system. HAVA has an Election Assistance Commission grant program available to states to purchase machines. We do not have to participate. We are not required to use the BMDs. We do not have to accept federal funds.

Further, we believe that the ballots used in the ExpressVote machines, are in actuality illegal because per section 3.1 (a) (1) (A) (i) in HAVA the voter cannot verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted. Machines read bar codes and humans cannot verify bar codes. We should not be encouraging people to use the ExpressVote machines as Ms. Frankenstein has done repeatedly with counties across the state.

The use of THIS ExpressVote ballot actually breaks HAVA law (per the expert opinion of Mr. Clay Parikh). You may have seen his testimony in Georgia where he showed PROOF of vote flipping and unauthorized access to electronic voting systems. You can view that on his X page:

https://x.com/ParikhClay

Here is the email he provided us:

How does the human eye know that what is in clear text matches the bar code that the tabulator reads to count their vote? ExpressVote machines are machines and they CAN be programmed and hacked just like any other electronic device. Same goes for electronic tabulators.

https://freedom-to-tinker.com/2018/12/03/why-voters-should-mark-ballots-by-hand/

Opposition to hand counting is not about secure, accurate trustworthy elections nor about saving taxpayers’ money, keeping the taxpayers’ money local or about not accepting a document because it breaks the law. It’s about state control of the status quo, power and money.

The desire for a more costly voting system, with zero transparency, that can be hacked and is totally controlled by unaccountable corporations is quite perplexing.

There also seems to be a desire to subvert the process with minutia, false semantics and scare tactics aimed at confusing people about the First Amendment and the intentions of our founding fathers by the people pushing back on this effort. Would the framers of our constitution be proud of those making the right to petition the government an almost impossible task to accomplish today unless you have tons of money and lawyers?

Our issue is NOT frivolous and technically a petition can be about anything. It would probably behoove the commissioners around this state to stop ignoring their constituents in the future so they don’t receive real frivolity via petitions.

My case is pending. So is the case of patriots Jeff and Jolene Stewart in Charles Mix county who chose to fight back as well. Hat tip to them for being in this fight too.

I don’t know how this is going to turn out. The judge was great during my pro se hearing, being very patient with a citizen lawyer. He gave me some hope when he didn’t immediately dismiss my case, heard me out for 90 minutes in a back and forth exchange and then in the end stated that “this is a fascinating topic” and asked for more time. I’ll take THAT as a win at this point.

I KNOW the 2020 election was stolen. I KNOW the machines were part of the steal. I know that the TRUTH always comes to light.

No matter how this court case turns out…no matter how the South Dakota government or Board of Elections determine how SDCL 12-17b-3 should read…

I BELIEVE that in the end WE WIN. God wins!