Counties fending off a storm of election-related lawsuits
A tabulator machine scans ballots during the Sioux Falls city and school board election on April 9, 2024. (Makenzie Huber/South Dakota Searchlight)
Some county officials in South Dakota are still dealing with a flurry of election-related litigation that began last spring, despite several losses by plaintiffs claiming violations of election laws and after a judge labeled one lawsuit's claims "not fully developed" and "illogical."
At least a dozen county auditors have received petitions from local residents this year seeking to ban election technology such as electronic tabulators, and also seeking to require hand-counting in future elections. Three counties — Gregory, Haakon and Tripp — accepted petitions this summer and put them on the June primary ballot, where voters rejected all three measures .
The petitioners in South Dakota include people who believe former President Donald Trump's false claims — thrown out by dozens of courts — that President Joe Biden's 2020 victory over Trump was fraudulent (in South Dakota, Trump won with 62% of the vote in 2020). The South Dakota lawsuits are playing out amid a broader atmosphere of harassment against county officials, which recently took the form of activists accusing Minnehaha County commissioners of "treason" for upholding laws that allow people such as full-time traveling RVers to register and vote in South Dakota.
Lawrence County has been an epicenter for lawsuits in South Dakota, although most have been dismissed. The lawsuits began after the county commission rejected petitions seeking to ban various forms of election technology and require hand-counting. The commission cited reasons for the rejection including state and federal laws that require electronic voting systems for people with disabilities.
A legal challenge to the commission's rejection of those petitions remains active, as does one of five legal actions claiming the results from the June primary are invalid because of allegedly improper uses of tabulating machines. Another open case in Charles Mix County challenges a similarly rejected petition on hand counting.
In those two counties alone, eight legal actions have been filed under the banner of "election integrity" since last spring.
What are the arguments?
Nichole Braithwait, who introduced and circulated the Lawrence County hand-counting petition, argues that county commissioners do not have the authority to reject a properly filed petition with enough signatures to support a public vote. The authority to determine a petition's legality lies with the courts and not commissioners, her lawsuit says.
Braithwait is associated with South Dakota Canvassing, the group that helped coordinate the statewide petition effort seeking to require hand-counting at the county level.
"I am convinced that we are on the right side of this issue and eventually the people will realize that our elections are run by corporations where the people have no oversight," Braithwait said in an emailed statement, adding that "our elections are selections."
South Dakota's elections are run by elected county auditors, and statewide results are reported by the Secretary of State's Office. Government officials do contract with companies to provide electronic tabulating machines. Post-election audits after the June primary matched the machine tallies in most counties, with minimal discrepancies in some counties that did not change results.
Braithwait and some other South Dakotans who suffered rejected hand-counting petitions have been unable to find lawyers to represent them.
Braithwait's lawsuits have cost her over $1,000 in printing costs alone, she said. She has taken time off work and away from her family to prepare and attend court.
Lawyer for counties calls lawsuits 'frivolous'
Rapid City lawyer Sara Frankenstein specializes in election law and represents many South Dakota counties in election-related lawsuits, including some of Lawrence County's.
The petitioners' struggle to retain a lawyer, Frankenstein said, reflects poorly on the claims in the lawsuits. Attorneys generally avoid cases with little to no chance of success, she said.
Frankenstein described the lawsuits as "frivolous" actions that cost counties money for elected officials "just doing what they swore an oath to do," which is conduct elections according to local, state and federal laws.
Lawrence County elected officials have also faced six legal actions from Kate Crowley-Johnson, who ran unsuccessfully for state Senate as a Republican in the June primary. Four have been dismissed, one against the Lawrence County auditor and board of commissioners is pending, and an appeal was filed in another case in September.
Crowley-Johnson lost by 18 percentage points to incumbent Sen. Randy Deibert, R-Spearfish. She's filed actions against Deibert, Lawrence County commissioners and the auditor challenging the use of automatic tabulating machines to count ballots.
In one case, Crowley-Johnson sued Deibert, requested a hand recount and called for a new election, alleging the county's election equipment had not been properly tested. The judge dismissed her claims, citing a lack of evidence of voting irregularities.
"Many of the claims are not fully developed," Judge Jeffrey Connolly wrote. "Many are illogical."
Crowley-Johnson denied an interview request for this story but alleged in text messages to South Dakota Searchlight that "the court system broke its own laws." She also used profanity in the text messages and accused South Dakota Searchlight of writing "propaganda."
Deibert said the cases have caused unnecessary public costs.
"It is taxpayer dollars paying for our court system. People should understand that," Deibert said. "We're talking property tax dollars. These frivolous lawsuits are part of the problem."
