Smoking ban left to voters

The way has been cleared for voters to decide the fate of South Dakota’s smoking ban in next year’s general election after Secretary of State Chris Nelson and Attorney General Marty Jackley announced Friday the state will not appeal a Circuit Court decision.

Judge Kathleen Trandahl ruled this month that opponents of the smoking ban secured enough valid signatures in a petition drive to meet the threshold for a referendum. The ban was passed by the Legislature in March and signed into law but never enforced.

The American Cancer Society had challenged thousands of those signatures, and Nelson followed a strict interpretation of the state’s election procedures and threw out most of the contested ones.

The coalition of smoking ban opponents then sued, claiming the majority of invalid signatures were thrown out for minor technical errors.

Trandahl agreed the petition signers and the notaries who certified those petitions substantially followed state election rules and reached a high enough standard of compliance with those rules for the signatures to count.

The Cancer Society on Thursday announced it would not appeal Trandahl’s ruling and would instead focus on winning at the polls next year.
Inactive voters among signatures

Nelson said Friday that he still has concerns the circuit court ruling could potentially weaken the state’s provisions to ensure that only legal registered voters sign ballot petitions. The fact Trandahl allowed some petitions without a notary seal to count as well as some signatures from people on the inactive voter list – in an apparent contradiction of a state law prohibiting that – especially troubled him.

However, to win an appeal, the state would have had to prevail on all the categories of contested signatures, and Nelson said he thinks that would be unlikely.

“I think the reality of the likelihood of success in an appeal made this a fairly easy decision,” he said. “Am I greatly troubled by some areas the judge said were OK and found substantial compliance? Absolutely.”

Nelson said he might recommend to the state Board of Elections when it meets in December that the Legislature be approached to tighten up statutes to avoid a repeat of the controversy over the smoking ban petitions.

‘Time to move on and … vote’

Don Rose, owner of Shenanigan’s Pub, a director of the state Licensed Beverage Dealers Association and an organizer of the effort to get a referendum on the smoking ban, applauded the state’s decision not to appeal.

“It’s time to move on and let the people vote.” he said. “Now we put together a campaign and let people know why we are doing this. Revenue will be hurt. I don’t think anybody understands that. The health issue is one thing, but revenue is another.”

Jackley noted a circuit court decision sets no binding legal precedent, and the compliance issues Trandahl ruled on could be litigated again.

“I think there truly was a lesson learned here. The lesson was to do it right the first time,” Jackley said.

“Once again we’ve established the Secretary of State has an obligation to follow a strict compliance standard. If you get sloppy and don’t follow the rules, you’ll find the Secretary of State rejecting signatures, and we’ll be in an unnecessary court battle.”


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