Judge rejects ‘Give Us Credit’ court challenge of Measure 21

Based on state law and tradition that aims to “liberally construe” petition efforts so that the intent of signers is not thwarted by “mere technicalities,” Barnett threw out the GUC case.

“I find that the petitions had enough signatures to go on the ballot,” he said. “The bottom line is the vast majority of the challenges have no merit.”

He praised the attorneys from both sides for handling so much material in such a short time.

Richard Williams, deputy attorney general for civil litigation and Ellie Bailey, an assistant attorney general in civil cases, represented Krebs’ office.

Sara Frankenstein, the Rapid City attorney for GUC, told the Capital Journal she thought Barnett’s ruling was fair and she could understand how he reached it.

“I can’t say I am terribly upset,” she said, while demurring on the question of whether she was surprised by the judge’s decision.

Frankenstein said she would have to talk to her clients about whether there is any recourse to Thursday’s ruling.

Once the ballot language is finalized on Tuesday, Measure 21 will effectively be on the election ballot for Nov. 8, along with nine other such initiated measures.

Measure 21 aims to limit payday lenders from charging more than 36 percent in annual interest on loans.

Petitions with 19,232 signatures were gathered by measure supporters last year to get it on the ballot because they think payday lenders charge too much for their loans, taking advantage of people with few means. Measure 21 supporters turned in the petitions last November.

An organization called “Give Us Credit,” or GUC, formed to oppose Measure 21 challenged the validity of the petition.

In late December, after a routine sampling of 5 percent of the signatures found about 14 percent weren’t valid, Krebs certified the measure with 17,222 signatures, well above the minimum 13,821 needed.

A closer look by Krebs after GUC brought objections in January lowered the signature total to 17,167.

GUC sued Krebs, saying its own review of the petitions founds thousands of signatures should be rejected, seeking a judge’s order to toss the measure off the ballot.

Frankenstein filed 26,000 separate challenges over the original 19,232 signatures, over a dozen or more issues, such as correct addresses, legible writing or improper notarization.

By the time the trial began Wednesday, accounting for more late challenges by GUC and adjustments by Krebs’ office, the count of valid signatures was down to 15,734, Bailey said in her closing. That number still was well above what is needed, and illustrates how carefully Krebs’ office pored over the petitions, Bailey argued.

Frankenstein took another tack in her closing, arguing that each time the petitions were reviewed, more and more signatures were found to be invalid.

Barnett said the approach of GUC and Frankenstein violated the state tradition of taking the most liberal reading of what people write on petitions.

Frankenstein argued that if a petition signer didn’t include a complete and correct address, the signature should be tossed out. For example, her witness, a GUC worker named Aaron Lorenzen, cited a Rapid City address written as only “Rapid,” by a petition signer, as invalid.

“To me ‘Rapid,’ is Rapid City,” Barnett said. ‘Mnhh’ is Minneihaha. I’m ruling that St. and Ave. are not required.”

Deputy Secretary of State Teresa Bray was on the stand for hours, explaining arcane details of how her office vets petitions.

Signers’ names must appear in printed form in one box and as a signature in another; both boxes could be printed, because some people print their own signatures, Bray said. But both name boxes can’t be in cursive; one has to be printed.

But a signer does not have to fill out all the boxes, for address and county and date, even the printed name; someone else can fill those lines and boxes and the signer can put nothing more than an X in the signature box, Bray said.

Abbreviations of cities and counties can be used, as long as it’s clear what they mean, she said.

If a notary public, who officially notarizes a petition, also signs the petition, that signature is invalid, Bray said. But the other signatures on the petition so notarized are valid.

Judge Barnett said in his ruling from the bench that he simply didn’t find the plaintiff’s way of rejecting signatures and petitions credible, as displayed on a big screen in the courtroom.

“I saw hundreds of examples of what you claimed were illegible (signatures and addresses) when, without my glasses, I could look across the room and clearly make them out, a signatures, a date, or whatever,” Barnett told Frankenstein.

Barnett said such efforts to challenge and parse each detail of petitions for such ballot initiatives, while legal, could effectively thwart the ability of citizens to use the initiative and referendum option to amend state law or the constitution.

“For future reference, the secretary of state ... may want to consider figuring out whether legislators want to give them the express authority to give a random sample (to validate petition signatures.) We have 10 (measures) on the ballot this year. If all 10 had 20,000 signatures, and eight objections were raised for each (signatures) . . . that is 1.6 million objections.”

The secretary of state’s office would be obligated to check out those objections, he said, all within the short time leading up to an election.

“If you can’t random sample that, the whole system shuts down.”