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SD pamphlet decision clarifies parts of law, leaves others vague

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Sen. Stan Adelstein2 / 2

PIERRE -- Circuit Judge Mark Barnett brought clarity to a vaguely written piece of South Dakota election law last week. He decided the secretary of state must compile "pro" and "con" statements about measures on the statewide election ballot.

The judge said the Legislature specifically directed the secretary of state shall perform that duty and therefore it must be done.

That answered the question of whether a "con" statement submitted by state Sen. Stan Adelstein should be added to the voter pamphlet that Secretary of State Jason Gant had already prepared and published for this fall's general election.

Absentee voting was entering its fourth week when the judge made his ruling Friday. Barnett said it wasn't too late to add the "con" statement that Adelstein submitted on Sept. 26, five days after absentee voting began.

"The failure to get complete information out to the first 16,000 (voters) does not somehow negate the obligation to get this legislative-directed information, the other side of the coin, out to the rest of the voters," Barnett said.

The judge said new pamphlets should be printed and changes made to other media used for distributing the statements.

Still unclear are related questions about the law that surfaced during the Adelstein hearing, such as who gets to submit the "pro" and "con" statements, how a secretary of state might choose between competing statements, what the deadline should be for submitting them, and how the secretary of state should try to find people willing to write them.

The law requires the secretary of state to print the statements from proponents and opponents. The law also contains the caveat "if any can be identified." That is where the issues arose about whether Gant had fulfilled his responsibilities.

Barnett rejected the arguments that Gant had sufficiently tried to identify opponents to write "con" statements. Gant sent 51 letters to various state officials including some leaders of the Legislature.

Adelstein, R-Rapid City, wasn't one of the 51.

The judge said Gant should have known to contact Adelstein and other legislators who voted against the various constitutional amendments that the Legislature put on the 2012 ballot.

Gant received 17 "pro" and "con" statements. Nine came from people he contacted, while eight came from others.

Barnett said his decision in the Adelstein case didn't affect three other measures that lacked "con" statements in the pamphlet because Adelstein didn't complain to the court about those. Four of the seven measures on the ballot now have both "pro" and "con" statements.