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SD judge: Democratic candidate can be on ballot

Chet Brokaw

A university professor from Mitchell can be placed on the November ballot as a candidate for the South Dakota House despite a technical problem on his nominating petition, a judge ruled Friday.

The state's chief election officer, Secretary of State Jason Gant, had rejected the nominating petition filed by David Mitchell because Mitchell did not list his political party on one line of the document.

However, Circuit Judge Mark Barnett of Pierre said Mitchell's nominating petition substantially complied with legal requirements because other lines indicated that Mitchell is running for the House as a Democrat in District 20, which includes Jerauld, Aurora and Davison counties.

"It's clearly indicated this is a Democratic petition," Barnett said.

Gant also had argued that Mitchell's nominating petition did not contain enough voters' signatures because Mitchell notarized some sheets of the document himself. Gant dropped that argument during Friday's court hearing after evidence submitted by Mitchell indicated that at least one other legislative candidate also might have notarized his own nominating petition.

Mitchell's lawyer, Sam Khoroosi of Sioux Falls, said 42 of the 211 legislative candidates submitted nominating petitions with various kinds of flaws.

Rep. Brian Gosch, R-Rapid City, who is speaker pro tem in the House, was the only candidate among the 42 who notarized his own nominating petition, Khoroosi said.

Gosch, a lawyer, said he doesn't believe he violated any law because he only notarized the signature of another person who was the official circulator of the nominating petition.

"I'm not notarizing my own signature," Gosch said.

Barnett noted that if he had ruled Mitchell violated South Dakota law by notarizing his own petition, it could raise questions about the legality of petitions submitted by other candidates.

"I can easily envision candidates who think they are behind in an election viewing a legal challenge as an easy way out the door," the judge said.

Khoroosi said he was not challenging the petitions of other candidates and only submitted the 42 other petitions as a defense against Gant's notarization argument.

After the judge ruled that Mitchell's failure to list his political party would not be enough to keep him off the ballot, Gant dropped his argument regarding Mitchell's notarization.

Gant said state law allows someone to file a challenge against a nominating petition with his office only within five days of the time the petition is filed, so the time for such a challenge has expired.

"After that, any case has to go to court," Gant said.

Mitchell will join another Democrat in seeking the two House seats in District 20. They will run against incumbent Reps. Tona Rozum and Lance Carson, both from Mitchell.

Earlier in the week, Barnett also ruled that Charles Johnson of Madison can be placed on the ballot to run for the state Senate even though his nominating petition was technically flawed. Johnson will face Senate Majority Leader Russell Olson, R-Wentworth, in the November election in District 8.

In both cases, Barnett said Gant acted properly in rejecting the petitions filed by Johnson and Mitchell because the secretary of state must strictly apply the laws and rules to avoid the appearance that he is favoring one candidate or political party over another.

The judge said state law and prior court rulings give the courts authority to decide whether nominating petitions substantially comply with the laws and election rules.

The Associated Press