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South Dakota Hires Outside Counsel to Fight Citizens For Public Records
Your Tax Dollars Hard at Work...

In January of 2022, the Federalist and Just The News released a report regarding Georgia's missing video surveillance. Starting in February of 2022, three South Dakota women began filing Freedom of Information Act requests with their respective county auditors, to request the video footage of absentee ballot boxes, amongst other things.

On May 11, 2022, Therasa Pesce received a denial letter to her Freedom of Information Act request, from Minnehaha County. In response to her request for information, pertaining to the video surveillance and audit logs during the 2020 and 2022 elections, county auditor Bennet Kyte contacted ESS (Elections Systems and Software), the manufacturer of South Dakota's contracted voting machines. Kyte was
appointed to the position of Auditor after former Auditor, Bob Litz was accused of wearing his mask improperly during the 2020 general election. Litz tested positive for COVID-19 two days after the election, and later resigned. Kyte took over the office effective January 1, 2021.

According to ESS, release of the logs could compromise the cyber-integrity of their machines, and potentially disclose "proprietary information," listed under South Dakota state law as an exemption to public records. In addition,
Auditor Bennett Kyte wrote to the Office of Hearing Examiners to "respectfully request," the Hearing Examiners "deny the petitioner’s request for disclosure," of the public records.

On July 12, 2022 Linda Montgomery received a similar response from Aurora County State's Attorney Rachel Mairose, to a separate Freedom Of Information Act filed in February. Montgomery requested information pertaining to the government contracts and purchase agreements with ESS, as well as the audit logs. This request was also denied, citing the denial from Minnehaha county, in addition to stating that election materials may be destroyed within 60 days of a non-federal election, and 22 months after a federal election.

Upon receiving similar denials to their public records requests, the women filed an administrative appeal with the South Dakota Office of Hearing Examiners. In response to these appeals,
The Hearing Examiners consolidated the separate requests for information, into one response. According to the OHE, due to the fact that the requests were similar in nature, "a consolidation was appropriate and allowed."

In addition, the OHE determined that "pursuant to
SDCL 1-27-40, no good cause was offered or shown necessitating a hearing." Ultimately, OHE sided with the county auditors, and ordered the non-disclosure of public records to be upheld, arguing that the ESS machine logs and database materials are not to be considered public record. Meanwhile, the request for video surveillance went ignored.



The lack of evidence provided from the Office of Hearing Examiners, other than quoting ES&S (Elections Systems and Software out of Omaha NE) as the basis of their denial, emboldened residents from every county across South Dakota to file their own round of FOIAs. The second round of public records requests included a much broader list of records being requested, but especially record of video surveillance at the ballot drop box sites.

However, shortly thereafter every response became uniform, and cited the OHE denial, while ignoring the expanded list of records being requested, as seen here; Deuel county response, Hutchinson County response, and Codington County's response. Each county admittedly unable to reproduce the video footage of absentee ballot boxes, required to be kept for 22 months by federal law. Each county citing absurd dollar amounts for copies, and each county responding with the exact same, rubber stamped response.

Then the end of June rolled around, and with it came the
disclosure of privately hired legal counsel, on the taxpayer's dime. Each county is now lawyering up, with Minnehaha and Pennington County Auditors having hired the President of the South Dakota Bar Association, Lisa Hansen Marso, and her colleague at Boyce Law Firm, David Hieb.

While President of The South Dakota Bar Association, Marso has
represented large corporations like Avera Health. Last year, Marso and her colleague David Hieb, both now retained to represent Minnehaha and Pennington counties, fought a Doctor in a wrongful termination lawsuit against their client, Avera Health. In fact, when calling the Boyce Law Firm, the first thing mentioned is an internal conflict of interest report, to ensure the firm doesn't currently represent the opposition. Interestingly enough, many companies will retain larger firms, such as Boyce, so their tenants, employees and anyone seeking to sue them cannot access the legal services of such firms, due to a conflict interest.

Most notable, is the disproportionate political advantage of having the President of the Bar Association on retainer. The Bar Association creates the curriculum for law schools, and a Bar card is the difference between being able to practice law or not. Every judge in the state of South Dakota, is still answerable to the Bar Association. Many say that the Bar is so powerful, no lawyer in their right mind would oppose its officers.

Should the citizens of South Dakota persist in trying to get public records from County Auditors, they will now be faced with the full opposition force of the state, and the Bar Association. The question remains, why is the state using South Dakota taxpayer money, to fight the disclosure of records that belong to the people of South Dakota?

Public disclosure and transparency appears to be an important aspect of free and fair elections to many individuals, across the political spectrum. While the 2020 election has left many Republicans feeling uneasy or mistrusting of election integrity,
the 2016 Presidential election had similar impacts upon Democratic voters.

Regardless of where people stand on the issue of the 2016 and 2020 federal elections, in South Dakota there is bipartisan support for cleaning up voter rolls, and not having more than one precinct voting at any given polling place after the hiccups that occurred during the 2022 primary. Due in part to redistricting, the issues that occurred across the state during the last primary have resulted in trans-partisan unity and a recognized need for election integrity.

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--Breeauna Sagdal- Editor At Large

Post Date: 2022-08-09 11:11:32Last Update: 2022-09-07 10:19:12


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