Bob Mercer | State Capital Bureau

PIERRE — Citizens have the right to refer South Dakota’s expanded smoking ban to a statewide vote, Circuit Judge Kathleen Trandahl ruled Thursday. Now it’s up to her judgment whether sufficient signatures are valid on the petitions to put the referendum on the Nov. 2, 2010 ballot.

The trial over those signatures heads into the second and presumably final day this morning at the Hughes County courthouse, with the petitioners standing 17 signatures short of the 16,776 minimum necessary to make the battle.

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In his Oct. 30 affidavit, Secretary of State Chris Nelson told the court he had determined the petitioners were 61 signatures short. But adjustments he’s made since then pared the number to 18 as the trial opened Thursday morning.

After hours of grinding Q-and-A on the witness stand, Nelson added one more signature to the valid column Thursday, leaving the petitioners still 17 short.

Under test is South Dakota’s doctrine of substantial compliance regarding election laws. More than 8,000 signatures were rejected by Nelson. Lawyers for the three sides in the case spent Thursday afternoon battling over why signatures were disallowed.

The Legislature passed the law last winter banning smoking in bars, casinos and restaurants with alcohol licenses. Smoking is already outlawed in most other public buildings as well as businesses and places of employment.

Four men with business interests in bars and gambling sponsored the petition drive in an attempt to put the law to a statewide vote under South Dakota’s constitutional provision allowing for a referendum. The American Cancer Society, which led the lobbying to pass the law, is resisting the referendum effort.

Judge Trandahl rejected the cancer society’s argument Thursday that the ban can’t be referred because it would preserve public health. The judge also turned down the petitioners’ request that nearly 3,000 rejected signatures be declared valid.

Petition circulators are required to sign an oath before a notary public that they complied with state laws in gathering the petition signatures.

Nelson threw out all of the signatures on dozens of sheets because of technical non-compliance by notaries public who used unapproved seals, misstated their commission-expiration dates or didn’t fully fill in dates on the petitions..

A total of eight witnesses testified Thursday, including two notaries. Twelve more witnesses including 10 notaries are scheduled to take the stand today.

However Judge Trandahl rules, her decision likely will be appealed to the South Dakota Supreme Court. In rejecting the petitioners’ motion regarding the notaries Thursday, she said she wants to hear the whole matter now.

“This is not the type of case the court can piece-meal,” Judge Trandahl said. She noted there are 26 categories of reasons that signatures were rejected by the secretary of state and there are issues of fact which need to be heard. She spoke of time constraints, with the election less than one year away.

“We only have time to do this case right once,” she said.

The underlying question affecting many of the disputed signatures is whether a notary public’s behavior one step removed from the act of signing a petition should disqualify someone’s signature.

Sara Frankenstein, the lead attorney for the petitioners, described it as “a scrivener’s error.”

“We’re talking about signers that fully complied with the law and circulators that fully complied with the law regarding the information on the (petition) sheets,” Frankenstein argued.

“The secretary of state cannot determine substantial compliance,” assistant attorney general Jeff Hallem said in Nelson’s defense.

The cancer society’s lead attorney, Dick Casey, stood with Nelson regarding the non-compliance by the notaries. “This is serious business. This is not the kind of thing that is loosey-goose,” Casey said.