Jerstad a few votes down, but still on top.

The Argus is reporting it, but Todd Epp over at SD Watch has a first hand account of the events of the Jerstad/Earley Recount:

From the challenges by Earley's attorney at the Canton recount, it appears they are going under a theory of disenfranchised voters. In Lincoln County, at least seven District 12 voters got absentee ballots with the wrong legislative district. After the ballots were flagged when going through the scanner machine, the election reconciliation board filled out appropriate ballots for that district, leaving the candidates for legislature in the correct district unvoted. (They would have no way of ascertaining the voter's intent for the right ballot.)

I haven't heard yet what went on in Minnehaha County. It's been reported that the county auditor there delivered the wrong ballots to one of the precincts and that voters could either wait for the correct ballots or vote on the "wrong" ball, leaving the legislative races blank. I believe that was 27 ballots.

While 27 ballots and the wrong absentee ballots could be enough to have changed the election, I don't know what the remedy would be. A special election would also disenfranchise previous voters who can't vote in another election for whatever reason. Turnout would likely be much smaller. I doubt that a court would order a new election.

Read it all here. That ballot screwup could mean that this election is not yet over if Earley decides to pursue it further. And why not? With 13 votes separating them, and 27 spoiled ballots where the intent of the voter can't be ascertained there's enough doubt that I'd at least be asking my attorney and the party what my options are.

Is this over? I don't think so.


The AP story is wrong. Earley picked up three votes in Lincoln County and four in Minnehaha. I spoke on the phone this evening to Brendan Johnson, who was my counterpart on the Minnehaha County recount board. I'll have the Lincoln County tally on S.D. Watch ( in a bit.

Todd Epp
Excuse me, the Argus, not the AP reported it.
Anonymous said…
It clearly sounds like voters were disenfranchised. I hope that all the D's who were screaming about butterfly ballots and the like in 2000 will be the first ones stepping up to the plate and requesting a new election for the voters of district 12.

How about it Todd?
Anonymous said…
The final tally is that Jerstad won by 19 votes.

The 27 people who voted district 11 ballots instead of District 12 ballots in Sioux Falls did so with full knowledge. They were offered the opportunity to stay for 15 minutes and get the correct ballot, or even come back anytime later in the day (a full 12 hours to come back). Instead they chose to vote right then and there on the ballot without District 12 legislative candidates on it. You can't say they were disenfranchised. Once again, they chose to vote the wrong ballots.

Earley cannot assert rights for people that the people themselves have waived. He has no legal standing to do that.

Even if Earley had standing to argue those 27 folks were disenfranchised, he would have had to receive 24 out of the 27 votes to overcome Jerstad's lead. You can't ask people how they would have voted, and you can't speculate yourself into an unlikely victory.

Earley needs to exhibit some class, and accept the results of the election, and the recount he requested. Time to concede to Jerstad and wish her well.
Anonymous said…
Why would Early start exhibiting class now?
Anonymous said…
Earley should throw in the towell. Sure, there may have been mistakes made. But the simple fact is that there is no result more just than simply letting the results stand. It is extremely unlikely that the 27 disenfranchised voters (who, by the way, chose to be disenfranchised) would vote 24-3 for Bill.

A new election is not a fair result. That would disenfranchise all the voters who already cast their ballots - it is more of a burden for them to come vote AGAIN than it would have been for the 27 people to wait 15 mins.

Ultimately, it is for the Senate to determine the qualifications of its members. The Senate could consider what happened and potentially seat Earley as the winner - but I hope it does take this inflammatory step.

By the way - is this not the same district that produced like 11 Wick/McIntyre ties? It seems like one party or the other would try to "take control" of the district by registering 12 new voters...
Anonymous said…
10:18 The Republicans thought they "took control" of the district after the 2000 census when they threw a few hundred new republicans in District 12 and Earley unseated John McIntyre by 200 votes. Their new control was a bit more tenuous than they had hoped.

so now, Earley wants to steal the election by pulling a power play and having the GOP senate seat him despite the count and the recount. Sounds like something a banana republic dictator would do.
Anonymous said…
Like I said - the Senate would make a big mistake if it seats the candidate who appears to have won fewer votes.

The Legislature has been faced with this problem before, and dealt with it with class. I don't remember the year, but it involved Democrat Kazmerask (sp?) in Dist 6. The House looked at the evidence, and objectively decided to seat the Democrat over the GOP candidate.
feasant said…
Steal the election? You liberals are a joke, if your person would have been screwed we would be hearing about lawsuits, how unfair Rs are, the same old BS.

Earley got screwed, but I put my money on: He is out.

As a recount board member, the only decision I could make (as one of three people on the board and the only Democrat) was to count or not count the ballots in front of me based on the law. That and to try to count to over ten without taking off my shoes.

Earley's legal counsel set aside the ballots that were under voted because absentee voters received the wrong ballot. It is up to Earley and his attorneys to decide if there should be further determinations made about those ballots. A Judge or the legislature will do that, not me.

Did the Lincoln Co. and Minnehaha Co. auditors make mistakes by not providing the correct ballots? Yes. But what is the remedy? I don't think you can prove how the under votes would have voted.

I can't tell Earley what to do. But I think the mistakes were made in good faith and without fraud or bad intent. Perahps those votes would have been for Earley, perhaps for Jerstad. We'll never know and there is no way to know.

Democracy operates on the premise that the candidate and his/her supporters will accept a one vote defeat. In my opinion, Earley has lost by 13 votes with no evidence of fraud.

If you have evidence of fraud, come forward. Otherwise, I think this matter is effectively over. "Mulligans" or "Do Overs' are very, very rare in American elections. If he wants to continue this odessy, that's his perogative. But I think it will not be successful.

As a former Gore volunteer who worked at the Nashville HQ during the days before the 2000 Election, we were warned on the night before the election of possible election fraud in Florida. What happened in Florida was either fraud or at the least, suspicious.

That is not the situation here. But me telling you that probably won't be convincing to you. There were NO disagreements in Lincoln County concerning Earley's gained votes. I agreed to all three of the votes he gained because, under the law, the intention of the voter was clear to me (and the other members of the recount board).

As a lawyer, I can tell you first hand that sometimes the law doesn't provide us with the result or remedy we like.

And that's what I have to say about that.

Todd Epp
Anonymous said…
"But I think the mistakes were made in good faith and without fraud or bad intent."

Oh come on Todd!

Let's NOT forget
1. That the Minnehaha auditor is a DEM--who made the SAME MISTAKE last election and sent the wrong ballots to district 12.

--who often fails to be even polite to REPS working in her office.

2. That everyone KNEW that this would be a close election.

3. That if Jerstad were down by 13 the DEMS would not be polite or have any manners about how they express their concerns.

No, there probably isn't any good remedy --- the unethical steal yet ANOTHER election.
Anonymous said…
I have no knowledge of whether the recount itself was accurate or ethically administered. But I do agree that if it had been the Dems seeking a recount, they would be whining and making all sorts of accusations about "disenfranchisement." Dems are a bunch of hypocrites.
Anonymous said…
And you and the other GOP jokers on this site are cry babies. Waaaaaaaa!

Grow up. Or move to another country. This is America, and we protect liberties here!!!!
Anonymous said…
Yes, duly protected by a tradition of delivering incorrect ballots to disenfranchise voters.
GOP come home said…
A pattern has now been established in this district and this district only in Minnehaha County of the auditor failing to supply the correct ballots for a second election cycle in a row.

I was down in Florida in 2000, not Nashville, and there the butterfly ballots were not fraudulent, they simply were just "too complicated" for the inept among the electorate to figure out.

So comparing Broward County with Minnhehaha is lame at best. Here the voters were deprived of the ability to vote when they showed up. Voters should not have to wait on their government at the polling place to do the right thing. Government should be serving the people.

I would demand an investigation into the disenfranchisement of voters in District 12 for the second election cycle in a row by the Minnahaha County Auditor.
Anonymous said…
Such a simple mistake right, delivering the wrong ballots to the wrong place.

Of those 27 voters some were mothers who had to get to work or face consequences, some were blue collar workers who had job demands, some were auto mechanics who had to get on the job before 8 am others were elderly who could not wait for long periods of time.

All of the above complaints were listed by the DNC as being reasons for disenfranchisement in several states around the country where wrong ballots were delivered just like here.

I want the SDDP to call for a full blown investigation into the situation. Won't happen though...

Two elections in a row is no longer a coincidence, its fraud.
Anonymous said…
I love how Republicans are suddenly concerned with the plight of the blue-collar workers.

There was no fraud.
Anonymous said…
About 900 people in District 12 cast ballots on the ballot issues, or statewide races, or both - but left the state legislative races blank. 900 undervotes.

The 27 people who chose to undervote because of the wrong ballot rather than waiting 15 minutes are no different than the other 873 who chose to undervote for one reason or another.

You can't say that anybody was disenfranchised. You can't say that there was any fraud. You can't say that the county auditor made a conscious decision to send the wrong ballots - a mistake was made and the correct ballots were there by 7:15. People voted the issues and races they wanted to vote - and left the rest blank. Earley came up a few votes short. The election is over. Time to congratulate the winner, and kick the ass of the whiner.
Anonymous said…
When Jerstad shows up in Pierre with her certificate of election issued by Chris Nelson, Republican Secretary of State, is Bill Earley going to show up and ask the senate to disregard the election and seat him?

If Earley does this, should Latterell do the same thing? How about Brian Johnson? Ellie Schwiesow? Maybe we'll have an all Republican Senate next year. Why stop with the Senate? Let's do the same thing in the House!
Anonymous said…
Naw. Let's just set the number at 100. Republicans who lose by 100 or less will get seated. New man law from the men of the square table.
Aaron Lorenzen said…
To echo the words of a previous post, it is quite amazing when Republicans are standing up and wanting a fair election and every member form the middle-left to the left is regarding it as "Another Republican whining".

Get off this soap box, you know darn well that if the situation was the same only the vote totals exactly opposite, Jerstad's lawyers would be up in arms about the outcome.

Many times have there been election problems and failures in favor of the democrats, look back at the 2000 US Senate race with John Thune and Tim Johnson on the Indian Reservation. There are reported incidents where people that were dead were casting ballots and other times when democrats were being said to pay people to vote.

Republicans didn't over stress the issue than, but now when there is an extremely close outcome, with noted errors and mess ups by the auditor, Republicans should just sit back and say "it's ok? No, this is democracy at its finest, a fair election, not a rigged one
sioux Falls voter said…
"Time to congratulate the winner, and kick the ass of the whiner."

There sure would be a whole load of Democrats with sore ***** if we kicked the butt of every whiner. For everyone ONE Republican that expresses legitimate concern, there are at least TEN Dems cryin' for no apparent reason.

Boo hoo-- Earley had a Dump Dascle sticker on his car. He is SO partisen.
Anonymous said…
Message to 9:41

There are no democrats whining about earley losing. Just you whiny republicans complaining that people chose to vote the wrong ballot instead of staying around 15 minutes to vote for Jerstad and give her a larger margin of victory.

By the way, is that frown permanently plastered on Earley's face? The guy has never been seen smiling and never taken a picture smiling. That could be one reason people don't seem to have any affinity for him. He's always angry and dour - even in his official photos. He was the most morose person in SD politics, and his negative attitude and demeanor matched his visage. If Rounds didn't support him, it's because he was always trying to undermine Rounds for one thing or another. Now Earley can go sulk out of the public view on his own time. Good riddance!
Anonymous said…
Earley lost becuase he fell victim to his hyperpartisanship.

He was on the short side of a 33-2 vote to honor Tom Daschle for his service to South Dakota.

He didn't get much help from Rounds but it probably wouldn't matter.

Rounds campaigned hard for Kelly and Dennis Arnold, both of whom lost.

In short, Rounds coattails were non existent.

Rounds is too smart and too chicken to take on Tim Johnson.

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