BROOKINGS – Cory Ann Ellis’ suit against the South Dakota Secretary of State’s Office in order to challenge the nominating petitions of two of her Democratic competitors for the District 7 race for the state House of Representatives was dismissed in Sixth Circuit Court last week.

The District 7 House race has five candidates running for two seats: Republicans Tim Reed and Doug Post, Ellis (Independent) and Democrats Dwight “Bill” Adamson and Zachary Kovach.

Ellis filed the suit on May 2 in what she described as an effort to ensure that valid candidates were on the ballot.

Ellis had said she filed the affidavit because she believed the petitions of Adamson and Kovach to be invalid.

One of the chief issues at play was that Spence Hawley, the same notary whose license was found invalid in the successful challenge to District 7 Senate candidate Mary Perpich’s petition, also served as the notary for Adamson and Kovach.

Ellis also alleged that enough of the signatures on Adamson’s and Kovach’s petitions were invalid to disqualify them from the ballot.

The court based its dismissal largely on the 1940 case Bakewell v. Hansen, which held that objections relating to nominations must be made in a timely fashion, such as before an individual’s name has been placed on the ballot. The Supreme Court also held at that time that nominating petitions could not be challenged in those circumstances, as it was too late.

Specifically, the Supreme Court had held that the nominating petition of a candidate who is unopposed at the primary level – as Adamson and Kovach were within the Democratic Party primaries – and so proceeds to the general election “becomes in effect a certification of nomination.” As a result, the Supreme Court concluded that a challenge “to the nominating petition which now has the effect of a certificate of nomination comes too late.”

As the court documents state, “Like the facts in Bakewell, Mr. Kovach and Mr. Adamson were unopposed at the primary level for the Democratic nomination for the office of District 7 state representative. As there were no opposing candidates at the close of filing nominating petitions for the Democratic nominations for the two District 7 state representative offices, Mr. Kovach and Mr. Adamson, by statute, were automatically advanced to the 2018 General Election. Thus, upon the expiration of the time to file nominating petitions (March 27, 2018), their nominating petitions became certificates of nomination which may not be challenged. … Ms. Ellis’s action was not filed until May 2, 2018, and technically has not been commenced as proper service of process has not been effectuated. … As such, her request is untimely and there is no claim upon which relief may be granted.”

The part talking about Ellis not having “commenced as proper service of process” refers to a procedural error the court also found as another grounds to dismiss: although she filed suit against the Secretary of State’s Office, she had not given notice to the South Dakota Attorney General’s Office, as is required when filing suit against a state entity.

“I’m not happy with the court’s findings, but I understand why (Judge Patricia DeVaney) came to the findings she did,” Ellis said.

In particular, she said the law concerning deadlines for challenging petitions was unclear.

“She referenced 1940 case law, which was Bakewell v. Hanson, which said the final date was the primary date. However, if you look at the Boswell case just a few years back, they said the final date was the day they were printed on the ballot. Those are two conflicting case laws and will create a different outcome,” she said.

Going forward, whether or not she is successfully elected to the District 7 House seat, she’d like to see legislation introduced specifying a deadline for challenges.

Ellis, who went through this process without legal representation in court, won’t pursue any further action – the only recourse she’d have is to appeal the decision to the South Dakota Supreme Court.

“To appeal at the Supreme Court level would require legal representation and at this point, the message and lessons that came from taking it to the Sixth Circuit Court are enough to go forward and change legislation to make sure this doesn’t happen in the future,” Ellis said.

Although frustrated with having uncertainty hang about their campaigns, Adamson and Kovach are glad to have the matter resolved.

“I’m relieved that we’re through this and excited to move on,” Kovach said.

Brookings County Democratic Party Chairwoman and Independent candidate for District 7 Senate Mary Perpich agreed. “It’s over. They’re on the ballot. They’re campaigning.”

From the start, they were confident that they’d get through the case eventually.

“We figured once we got past the primaries, we were OK, and we knew that she made procedural errors, but we didn’t say anything until after the primaries because we knew we were on the ballot,” Adamson said.

Still, they said the case was a burden on their ability to campaign and fundraise.

“It disrupted our campaigning because we were kind of in a state of limbo, and we were waiting to see what was going to happen before we got things geared up,” Adamson said. 

He added, “We’ll campaign in force now. It did kind of throw us off because I didn’t really want to accept a lot of donations because I’d have to pay that back if I were bounced off.”

Kovach added that fundraiser events are being planned for the coming months.

“I’ve never been through anything like this. It was such a strange thing,” Perpich said. “Who would have thought that Brookings, South Dakota would become a hotbed for two races, a Senate race and a House race, for Democrats?”

Contact Eric Sandbulte at esandbulte@brookingsregister.com.