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Medical marijuana advocates will get a recheck of the validity of signatures for their initiated measure that had been rejected by the South Dakota Secretary of State's office.

The advocates were trying to get the medical-marijuana initiated measure on the Nov. 8 general election ballot, but the Secretary of State's office ruled that too many of the signatures on the initiative petition were invalid.

An official challenge was filed on Thursday by the author of the measure, Melissa Mentele of New Approach South Dakota. The challenge, in the form of an affidavit, accused the Secretary of State's office of making several large mistakes in the process of validating signatures for the initiated measure.

To get on the statewide ballot in the Nov. 8 general election, an initiated measure needed 13,871 signatures of registered voters. On Feb. 3, the Secretary of State's office said a 5 percent random sample of the signatures found 45 percent of the 16,543 signatures were invalid, so the petitions fell short of the number needed.

South Dakota Secretary of State Shantel Krebs said in a Friday afternoon telephone interview, her second interview of the day with the Journal, that she had the chance to read the complaint, and her office will conduct a new 5 percent random sampling of the signatures for the medical marijuana ballot measure "in order to maintain the confidence in the petition process."

"We feel it is the right thing to do," Krebs said.

She said the new random sampling will be conducted within 30 days. 

Mentele said she was relieved to hear of Krebs' decision, adding she hopes the process will be much more fair this time. "We went back and checked (the Secretary of State's office's) work and found some problems, so we hope those things will get cleared up this time," Mentele said.

The measure would allow for up to three ounces of medical marijuana to be possessed by a patient with a serious medical condition. The marijuana would be available after a recommendation from a medical professional with whom the patient had a medical relationship for at least six months.

During an interview with the Journal on Friday morning, Mentele said she talked to an employee in the Secretary of State's office and went through line-by-line several signatures that were ruled invalid.

According to Mentele, that employee admitted that several signatures deemed invalid should have been counted as valid. That employee seemed perplexed as to why those were invalidated in the first place by a different employee in the office, Mentele said.

In her first telephone interview on Friday, before she decided to recheck the signatures, Krebs said she hadn't heard about the conversation between Mentele and the employee. Krebs further said she would defend her office and its work on reviewing the signatures. 

Krebs did note that there is no system in place whereby signatures deemed invalid by one employee would then be checked by another. She said the amount of time and employee effort such double-checking would require would be significant.

In addition, Krebs said that perhaps Mentele never received an up-to-date voter registration roll from her office so the information Mentele used on registered voters may have been inaccurate. Mentele said she got her voter registration roster from a third party, and she was sure it was valid. 

"I think (Secretary of State employees) thought we weren't going to take the time to check over every signature and that we would just let it go, but we aren't," Mentele said.

One section of the challenge affidavit asserts that 131 signatures disqualified by a simple notary error should have been counted as valid. One example of a notary error, according to Mentele, was that the notary forgot to put the day the notary license runs out and only had the month and the year.  

In the affidavit Mentele cited a South Dakota law that says, "The petitions herein provided for shall be liberally construed, so that the real intention of the petitioners may not be defeated by a mere technicality." As such, she said, a notary mistake of not having the day of expiration, but including the month and year, could be construed as a technicality. 

Krebs said according to state statute her office would not make the determination that something was a "mere technicality." She said that would have to be decided by the courts, but her office can only look at whether the page was notarized properly.

"Having stupid technical things block this measure says the people of South Dakota are not mindful enough to make this decision on their own," Mentele said Friday. "They over-scrutinized us, they nitpicked and they found errors in places where there weren't any."

Even though Mentele's challenge alleges large mistakes by the Secretary of State's office, that is the office responsible for reviewing a complaint and deciding if it is valid.

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Krebs said she saw no problem with that arrangement because her office will be following state statute and will be looking at each issue in the challenge without prejudice.

Mentele said Friday that the number of invalid signatures on the Secretary of State's first random sampling seemed incredibly high to the medical-marijuana advocates because of the care they took while gathering signatures. 

Signature gatherers for the measure had an application on their smartphones called "Can I vote." If there was even a question of whether a person was registered, the gatherer had that person input his or her name, birthday and address to check registration information. 

"If there was even a minute question," Mentele said, "we double-checked it before they signed."

Upon examination of the Secretary of State spot check by other members of New Approach South Dakota, Mentele said, they found 91 signatures that were thrown out for not being registered but were actually valid when she checked the state voter file. Mentele said that group of 91 people includes her father-in-law and a person who formerly ran for Congress in South Dakota. She said she knew those two were registered voters. 

In the affidavit, Mentele and New Approach South Dakota say that for each signature they say was ruled invalid, they looked up on the voter rolls the page number, line and voter ID that prove the signature being questioned was valid. 

Another section of the affidavit says the Secretary of State's office reviewed too many signatures.

South Dakota law says that the Secretary of State will perform a 5 percent random sampling of the signatures to assure their validity. But the challenge affidavit said it appears the Secretary of State's office pulled 160 more signatures than it was required to check.

Krebs admitted that her office pulled more than the 5 percent random sample. 

"We are trying to give them benefit of the doubt, and we wanted to err on the side of caution," Krebs said. She said the thought process was that because the number of signatures collected was not much higher than the number needed, a larger sample size for a spot check would be more fair to the sponsors of the petition.

Mentele argues that pulling more than the number specified by South Dakota law invalidates the Secretary of State's process.

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