Ex-candidate’s case helps spur election law proposal from attorney general

A nine-year-old case against a former U.S. Senate candidate paved the way for a legislative proposal that would make it a felony to lie about petition circulation.

A jury convicted Dr. Annette Bosworth, a 2014 candidate on the Republican primary ballot for Senate, on a dozen felony counts of election law violations in 2015. Bosworth attested to having collected nominating petition signatures herself, but did not do so. She was out of the country at the time the petitioning took place.

The South Dakota Supreme Court upheld convictions for filing false petitions but tossed six counts of perjury because the law as written didn’t apply to petition falsehoods.

Senate Bill 46 aims to change that. 

It’s part of the legislative package from Attorney General Marty Jackley, who just took office for a second stint as the state’s top prosecutor and led the case against Bosworth during his first term in the role.

Under the proposal, knowingly and intentionally violating petition laws would count as felony perjury, punishable by up to two years in prison.

After the bill’s first hearing by the Senate Judiciary Committee on Thursday, Jackley told South Dakota Searchlight that he mentioned Bosworth’s case because “everybody knows about it,” but that other alleged violations have taken place since the Supreme Court ruling hamstrung potential election law prosecutions.

“There have been other things that I have been aware of, and we’ve decided not to pursue them because of the Bosworth case,” Jackley said. “As attorney general, it is more common than I am comfortable with, because it affects the integrity of elections.”

Bosworth did not return messages seeking comment on Thursday.

The bill was one of two election integrity measures Jackley presented Thursday. 

The second would clear up what Jackley described as an oversight in state law. 

In most cases, when a law on the books in South Dakota doesn’t carry a penalty, the default penalty for violating it is a class 2 misdemeanor. That’s the lowest level of offense in the state, carrying a maximum penalty of 30 days in jail and a $500 fine.

Currently, violations of Chapter 12 of South Dakota law –  election law – do not carry such a presumption. 

Jackley would like to see that changed with Senate Bill 47. It would attach a class 2 penalty to violations of any law in the extensive chapter and allow prosecutors to levy charges – something that’s not possible at the moment in most cases.

If someone uses public funds to influence elections or stuffs ballot boxes, Jackley said, “I can’t do anything about it.”

Sen. David Wheeler, R-Huron, voted against the bill, citing concerns that it covered too broad a swath of behavior related to election operations.

Wheeler recommended “a scalpel” be applied when deciding which election law violations might be worthy of criminal penalty.

“Before I vote to criminalize an entire chapter, I want to know what I’m criminalizing,” Wheeler said. 

Passing the bill would not mean a rush of prosecutions across the board, Jackley said. After the hearing, he suggested that the change would be resistant to attempts to politicize prosecutions, because prosecutors would weigh the relative importance of each case before moving forward.

“If you do a selfie in the voting box, I don’t want to prosecute that,” Jackley said. 

Rather, he told lawmakers that he aimed to set a floor for penalties and start a conversation about which parts of election law might be worthy of stiffer enforcement measures.

In the case of a person using public funds to influence an election, he said, a rewrite at some point in the future could clarify both the bounds of a criminal violation and enhance the penalty to a felony.

Both bills advanced to the full Senate.