Attorney to Charles Mix County group: ACLU will file lawsuit with election petition changes

May 10—LAKE ANDES — A group of Charles Mix County residents who have lost trust in the election process urged their county commissioners to consider a petition that implements sweeping changes to local election laws.

The petition sought to make numerous changes to Charles Mix County's election process, the most notable included requiring county election officials to hand count ballots and eliminating the use of electronic voting machines with an exception for people who are disabled.

After a lengthy discussion Thursday, May 9, that sparked tense debates between the Charles Mix County Commissioners, a South Dakota attorney, and the group of residents supporting the petition, the commissioners unanimously voted to deny the petition.

Commissioner Nick Stotz was convinced the requests "exceeded the county's authority."

Jeff and Jolene Stewart are concerned with the security of local elections, in large part due to the use of electronic voting machines and tabulators. As the petition was circulating, the couple discovered there are more Charles Mix County residents who have lost trust in the election process.

"We're for fair, verifiable, accurate and secure elections," Jolene Stewart said.

While Jeff Stewart was gathering signatures to validate the petition, he heard supporters say voting tabulating machines are "easily hackable, corrupt and pre-programmable."

The petition saw 348 signatures, above the 5% mark needed to bring a valid petition in front of the county commission.

Petitions seeking to change local election rules have been spreading throughout the state over the past few years, and South Dakota attorney Sara Frankenstein has represented county governments faced with those respective petitions.

Frankenstein made clear during Thursday's meeting she's not opposed to counties making the switch to hand-counting ballots, as long as the petition requiring the change doesn't violate state and federal election laws. Frankenstein said the petition brought in front of the Charles Mix County Commissioners would put the county in violation, which she emphasized would result in a costly legal battle for a local government entity with an insurance cap of $25,0000 for legal matters.

"We have advocacy groups that love to sue local governments. We've experienced that here in the past when the ACLU sued us (Charles Mix County), which required us to seek pre-clearance from the U.S. Department of Justice before making any county change in voting," she said. "You will be paying out of your county assets to defend this."

Frankenstein was confident that the ACLU would be filing a lawsuit against the county if the petition was approved and later voted in.

If the commissioners approved the petition, Frankenstein said it would have to go through the "pre-clearance" process conducted by the U.S. Attorney General's Office due to the county being sued about a decade ago for moving a polling place. The U.S. Attorney General could reject the petition, she said.

During the discussion, Jeff Stewart threatened the commission with his own lawsuit for denying the petition.

Frankenstein said all South Dakota voting precincts are required by law to have voting machines available for voters. While the voting machines — which Frankenstein said are not considered electronic voting — are designed to aid voters who are disabled, she said all voters can use the ExpressVote machines upon request.

"This is a machine that helps people mark a paper ballot. This is not a method of voting electronically. There must be one of these machines at every polling place," she said.

Another argument the petitioners made during the meeting was the county commissioners have ultimate authority to implement election laws for their local territory.

Jeff Stewart remains convinced that counties have authority over the state Legislature with establishing local election laws.

"The counties were established before the state was," he said.

Frankenstein pointed to the state constitution that explains the state Legislature is the governing body that has the authority to create election laws throughout the entire state.

"Counties don't have inherent powers to create election laws. The state Legislature does," she said, citing the South Dakota Constitution. "You can't have two governing bodies governing at the same time."

Multiple cases that have been decided by the South Dakota Supreme Court have also concluded a county cannot pass an ordinance that conflicts with state law, Frankenstein highlighted.

Frankenstein said the petition also included duplicate language matching state election laws, which she claimed would be rejected by a judge.