Mistake means new election for Keystone

By Leslie Silverman

 

The Town of Keystone will hold a new election for town trustee. The decision came as a result of a special meeting held April 11 at which the town board voted to have attorney Sara Frankenstein file a  declaratory judgment action.

The case itself is a result of an error made by Keystone finance officer Samantha Epler.  Epler cut and pasted last year’s ballots which said “vote for two” despite only one seat being available by vote. That ballot was published in the newspaper and used on election day.

Three people voted absentee on the wrong ballot and six  people voted  in person on the  wrong ballot before the mistake was caught by the election board. After that Epler reprinted ballots changing “vote for two” to “vote for one.” 

Epler said, “those first nine, they all were in the election box.” 

Frankenstein is an attorney with Gunderson, Palmer, Nelson and Ashmore, and is the only lawyer in the state specializing in election law. Her fee, minus the $5,000 deductible, is covered under the town’s insurance, South Dakota Public Assurance Alliance (SDPAA).

According to Frankenstein this case is unusual in many respects. First SDPAA normally doesn’t pay for affirmative action, but rather pays to defend an action brought. And second, in her 22 years in doing this type of work, Frankenstein has never seen a case like this. She said normally these types of cases involve a contested vote by an individual who loses an election. He or she would bring a lawsuit against the town and against the winning candidate. Then the town would hire an attorney, like Frankenstein, to defend the case. 

“There’s a whole statutory structure that tells me how to do them and I’ve done them before…but it doesn’t quite fit here,” Frankenstein said. She explained further, “you never ask for a new election in an election contest anyway. Keep in mind for an election contest, that’s  where the losing candidate chooses to just recount the votes that are there. It’s never for a new election.” 

Frankenstein said the town could just hold another election without a court order but was concerned it could then be subject to a lawsuit. The secretary of state does not get involved in municipal elections even when an error is clear. 

“The city’s in  charge,” Frankenstein said. 

The secretary of state only oversees county elections or state and federal elections. 

“They are generally hands off for cities,” Frankenstein said, as well as most school board elections, road districts, water districts, etc. 

However, her advice on how to move forward fell under the declaratory judgment statute where you “ask the court to declare what we should do in this situation. It’s a way to put odd things in front of a judge when the rights of the parties and people involved are unclear,” Frankenstein said.

In this action both candidates, David Cofoid and Matt Fullilove, would be named defendants and  look like they are being sued. But Frankenstein explains the formality is so that both could have due process and assert their rights at the hearing if they so choose.

Frankenstein chose a three-week timeline for a new election in the complaint she filed in court because that’s when municipal elections are usually redone in the case of a run off.  It also gives time for the corrected ballot to be published in the newspaper as per state statutes.

Circuit court judge Jeffrey Robert Connolly ordered a new election April 13.

The order stipulated the results of the first election did not need to be canvassed, although the town did so anyway. The order reads, “the defendant candidates both indicated that they are not opposed to the town’s request for re-election.”

Polls will be open from 7 a.m. until 7 p.m. for voters to decide if either Fullilove or Cofoid will be Keystone’s new town board trustee.