Referendum or Not: About Those Petitions...

South Dakota's ban on smoking in most public places and work places (with exceptions for lodging and cigar bars) may go into effect tomorrow with a stroke of Secretary Chris Nelson's pen. Or maybe not. Smoking supporters are writing up a lawsuit to challenge the challenge that invalidated thousands of the signatures they gathered to forestall the implementation of the ban until a public vote 16 months from now.

I have no problem with either challenge. All parties involved are executing their rights under the law, and that's fine. And, as an added bonus, by spending their money on legal action, the smoke lobby and the health lobby are burning up money from their campaign coffers. I'd like to think that means that if we do get a public vote on this issue, we won't see as many ads or as much junk mail cluttering up our mindspace.

Speaking of money, all those invalid signatures could be a moneymaker for the state. Many of the 8845 bad signatures came from folks who either weren't registered to vote or signed more than once (anyone do both?). SDCL 2-1-6 makes such improper signing a Class 1 misdemeanor, one step shy of a felony. We could fine the bogus signatories the $2000 allowed by law for attempting to subvert the democratic process. If we fined even a thousand of these scribbling ne'er-do-wells, we'd have two million dollars—and that could fill a lot of potholes.

Now I've had some fun making fun of petition circulators who concentrated their efforts around bars, where it only stands to reason you're going to encounter a higher percentage of people who aren't in any condition to be operating complicated machinery like cars and pens. But about 2500 signers had their inky efforts rejected due not to their own misdemeanory but to mistakes by the notaries public, who did silly things like putting the wrong expiration dates by their seals.

One can argue (perhaps statutorily—see SDCL 2-1-11) that we should give petitions wide berth and not let technicalities nullify petitioners' honest intentions. I can sympathize strongly with that position: we rely on notaries to know their responsibilities and carry out their duties properly. To allow one misstroke of the pen by one official to negate the will of the people seems a dangerous allocation of accidental power. But the strict rules governing the authority of notaries public ensure that our documents and oaths are kosher, and they are part of the rule of law.

What should happen to petitions that are spoiled solely by an error of the notary public? That's a hard question, well worth the opinion of a judge... or maybe five.