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According to Sazama, the Democratic team quickly set up shop in the Parish Hall kitchen, just a few feet from the tables where voters would cast their ballots. The party had rented dozens of vans and hired drivers to bring voters to the polls, and the out-of-state lawyers made the kitchen their transportation headquarters. "I saw this young man from New York with boxes of file cards," Sazama says. "They had the names and time-of-pickup and whether someone voted on them, and from those he would contact the drivers." It took her a few minutes to realize that the Democrats intended to run their get-out-the-vote effort from inside the polling place.
As they worked, the lawyers were constantly on the phone in the kitchen. It was the only phone in the Parish Hall, and on more than one occasion election officers were unable to make calls when they needed to. Sazama, a Republican, worried about that, and so did Nancy Wanless, a Democrat who served as the precinct's election supervisor. "A lot of times it was hard for me," says Wanless. "They were on the phone using it to call I don't know where, and I needed to call because we had some new districting. They were always talking on it." When Wanless protested, she got a chilly reaction from the out-of-towners. "I felt like they were trying to intimidate me," she recalls.
Through much of the day, Sazama wondered whether it was legal for the Democrats to use the precinct as a campaign office. "I didn't think that had any business in our polling place," she says. "If they wanted to do that, they could have had an office away from where we were doing the voting." In fact, such tactics are specifically forbidden by South Dakota law. But Sazama didn't know that, and there were no Republican lawyers, from out of state or anywhere else, at the precinct to help her (the GOP poll watchers were all locals, like Sazama). So she did nothing.
The big-city attorneys were part of a force of 10,000 lawyers deployed nationwide by the Democratic National Committee, ostensibly to ensure that voters' rights would be protected. But there is compelling evidence to suggest that at least some of the lawyers did just the opposite. According to the testimony of dozens of South Dakotans who worked at the polls, the out-of-state attorneys engaged in illegal electioneering, pressured poll workers to accept questionable ballots, and forced polling places in a heavily Democratic area to stay open for an hour past their previously-announced closing time. In addition, the testimony contains evidence of people being allowed to vote with little or no identification, of incorrectly marked ballots being counted as Democratic votes, of absentee ballots being counted without proper signatures, and, most serious of all, of voters who were paid to cast their ballots for Sen. Johnson.
The stories are told in more than 40 affidavits collected by Republicans in the days after the election and obtained by National Review. That evidence, along with interviews with state and local officials, suggests that Johnson may have benefited from hundreds of votes that were the product of polling-place misconduct. Had those votes not been added to his total, it seems likely that the senator, who won by just 524 votes, would instead have lost, and John Thune would today be South Dakota's senator-elect.
A WAD OF CASH
Ed Assman is a retired highway-patrol officer who lives in Pierre, the state capital. He has several relatives who are politically active in Todd County, home of the Rosebud Indian Reservation, and on Election Day he traveled to the small town of Parmelee, in the northwest part of the county, to serve as a Republican poll watcher. The precinct where he worked was in a place known as the Elderly Nutrition Center.
"It was one big open room," Assman recalls, about 20 feet by 45 feet. At one end were tables for election officials and voters. Poll watchers sat at another table. The main Democratic poll watcher was from Washington, and he set up an area not far from the voting table from which he directed the van operation that picked up Democratic voters. "It was obvious that they were running their campaign headquarters out of there," says Assman. "The drivers of the vans were coordinating their efforts with Democratic poll watchers inside the polling place." Assman's recollection is quite similar to what Sazama saw in Mission. And at yet another precinct, in the town of Rosebud, a witness who asked not to be identified says he also saw Democratic poll workers running a carpool system "out of the polling place."
South Dakota law states that "No person may, in any polling place or within or on any building in which a polling place is located or within one hundred feet from any entrance leading into a polling place, maintain an office or communications center. . . ." The Democrats' get-out-the-vote work appears to have violated that law, something state officials conceded after the election. "That type of office operation to conduct a partisan campaign operation should not have been happening at the polling place," said Chris Nelson, the state election supervisor, in an interview with the local Todd County Tribune.
But some witness accounts raise an issue that is potentially more serious than the breach of the anti-electioneering law. On one occasion, Ed Assman saw van drivers approach a Democratic poll watcher in the Parmelee precinct. "I heard the driver say, 'We need money,'" Assman recalls. "The guy rolled out cash and gave cash to each guy." Assman says he could not see how much money the man handed out, but another witness got a somewhat better view. "It was a wad of twenties," says the witness, who asked that his name not be used. The same person says the Democratic poll watcher later explained that the payment was "gas money."
Another GOP poll watcher says that, in Mission, he saw "the chief Democratic poll worker who coordinated the van transportation effort [pay] a van driver cash in the polling place." These instances of money changing hands have raised suspicions that Democrats were perhaps buying more than gasoline. And indeed, three people in Todd County have signed affidavits swearing that a driver offered them money in exchange for their votes.
"I was given a ride to the polls in a van with 'Tim Johnson for Senate' signs in the window," reads one affidavit. "I was promised $10 if I would go vote. . . . I voted at a precinct located in Mission, South Dakota. . . . When [the driver] dropped me off, he offered me $10 for voting." The other two affidavits tell the same story. None explicitly says the voters accepted the money — this would be a confession of a crime — but there is little doubt that they did. And even if they did not, simply offering money for a vote is a crime under South Dakota law, which forbids anyone "to pay, lend, contribute, or offer . . . any money or other valuable consideration" to anyone for a vote.
[Note: Recently state attorney general Mark Barnett announced that his investigators had found two of the vote-buying affidavits to be false and the third to be "suspect." Barnett speculated that the three affidavits might be the work of one man, a Democrat on the Rosebud reservation. But the man told the Sioux Falls Argus Leader he had nothing to do with the affidavits — and then seemed to support the vote-buying allegations by telling the paper, "People on the streets were saying you go vote, they would give you gas money, $10, maybe a pack of cigarettes, and if you couldn't get there, they would give you a ride." Barnett has not challenged the veracity of any other affidavits — Byron York]
WHAT TIME IS IT?
Twice in late October, Todd County auditor Kathleen Flakus published a notice in the Todd County Tribune announcing that on Election Day the polls would be open from 7:00 a.m. until 7:00 p.m., Central Standard Time. There was nothing unusual about that. Everything in Todd County, including elections, operates on Central Time, and has for as long as anyone can remember.
But according to government maps, Todd County is actually just west of the time-zone line that runs through South Dakota — meaning that it in fact falls in Mountain Time (one hour earlier), not Central Time. While that's a meaningless distinction for most locals, on Election Day it came to play an important role in Tim Johnson's victory.
Early that morning, a man named Iver Crow Eagle, a Democratic election official who was supposed to bring the ballot boxes to the St. Francis polling place in Todd County, showed up late, about 7:45 a.m. That meant the polling place didn't open until shortly before 8:00. Normally, that wouldn't be a big deal; the precinct could stay open for a full twelve hours under a South Dakota law that allows the county auditor to keep any precinct open late if there has been an unforeseen delay.
But the out-of-state Democratic lawyers had a different idea. Not long after the opening of the St. Francis precinct, they demanded that all precincts in the heavily Democratic county be kept open an additional hour. (They made the same demand for all precincts in less-populous Mellette County, next to Todd, which is also west of the time line and also keeps Central Time.) The lawyers argued that the law required that the polls stay open until 7:00 p.m. Mountain Time, which meant staying open for a total of thirteen hours rather than twelve.
Local election officials were flabbergasted. "I said, 'Why should people have to vote on Mountain Time when they live by Central Time?'" says Flakus, a Democrat. "To me, it just didn't make sense. And it still doesn't." But the out-of-state Democrats were adamant. They argued with state officials, who were forced to concede that Todd and Mellette counties were, officially if not in any other way, in Mountain Time. "I got a call from the attorney general's office that said you will be open until 7:00 p.m. Mountain Time, and if we don't we'll be in violation of Section Five of the Voting Rights Act," Flakus says.
In the precincts, no one could understand what all the fuss was about. Nancy Wanless, the Democratic election supervisor in Mission, was surprised to hear the Democratic poll watcher from California talking about time zones. "She says, 'Isn't this Mountain Time?'" Wanless recalls. "I said, 'No, it's not, we've always been on Central.' She stuck her nose where it doesn't belong and I don't know what strings she pulled. . . . She makes phone calls and tells me that I am supposed to stay open until 8:00 p.m. [Central Time]. I said, 'I can't.' I was going by my book. She got mad and said, 'Well, you have to!'"
Late in the afternoon, Republicans made a last-minute attempt to close the polls at the normal time. State law requires that polling places be open from 7:00 a.m. to 7:00 p.m., they argued, which means that the legislature clearly intended for voting booths to be open for twelve hours. "Allowing the polls to remain open thirteen rather than twelve hours would unconstitutionally and improperly dilute the votes of voters who voted during proper hours," the suit read. As a fallback position, the GOP requested that, if the polls remained open, ballots cast after 7:00 p.m. Central Time be segregated from other ballots in case a judge later ruled in favor of the original closing time.
A state circuit-court judge dismissed the suit without comment, and the polls stayed open until 8:00 p.m. Central Time. Since the ballots were not segregated, it's not clear how many people voted during that extra hour, but it appears the number was significant. One witness who took care to count says he saw 103 people vote during that time in Mission, the largest precinct. In St. Francis, another observer counted 22 additional voters. Given the voting patterns of the area, it's likely that nearly all of those extra votes were Democratic. There are no reliable numbers for the six other polling places in Todd County, but it seems reasonable to estimate that the extended voting hours gave Tim Johnson an additional 200 or so votes. Mellette County accounted for a few more.
FRAUD? WHAT FRAUD?
In the months leading up to the election, South Dakota Democrats joined with the national Democratic party to organize a massive voter-registration drive. Specifically targeting the state's Indian reservations, the campaign was successful beyond anyone's estimation, signing up 17,000 new voters. But it set off a scandal when news reports revealed that the party paid bounty hunters $3 per head to register people to vote — a system that even neutral observers admitted was an invitation to fraud.
One party activist, a woman named Becky Red Earth Villeda, made nearly $13,000 by collecting names on voter-registration cards and absentee-ballot requests, almost all of them on the state's Indian reservations. Before the election, state prosecutors announced that they had found 15 phony ballots associated with Villeda, were investigating 1,700 others, and intended to indict her. "It appears that we were able to get her stopped before she actually cast any fraudulent ballots," says Larry Long, South Dakota's chief deputy attorney general. "But it's conceivable that she was able to get ballots cast that we don't know about."
Democrats scoffed at allegations of voter fraud — a local party spokeswoman dismissed them as "pure political spin." But the affidavits suggest there may indeed have been fraudulent absentee-ballot requests that prosecutors did not know about and that were discovered only on Election Day. Three examples come from Dewey County, on the Cheyenne River Indian Reservation, where Villeda focused a significant part of her efforts.
One observer noted that at his precinct in Dewey "during the course of the day 15 to 20 voters came to vote and the book [of registered voters] indicated they had requested absentee ballots when they had not." One man, the affidavit says, "stated that [the] signature on an absentee ballot request was not his." Several others "stated they made no such request." At another precinct in Dewey, a witness said, "There were ten people who arrived at the polls and the book indicated that they had requested absentee ballots." And at yet another Dewey polling place, an observer wrote, "Seven people had problems while trying to vote because the book listed them as absentee voters." If those problems were discovered only when voters themselves showed up at the polls, it seems reasonable to suspect that there might have been other cases in which absentee ballots were actually cast improperly and were not discovered because the person in whose name the application was made did not appear at the polls.
That seems to have happened in Todd County, too, where Noma Sazama saw a number of ballots that didn't look right. The election board was required to check the signature on the absentee-ballot request against the signature on the actual ballot, and to count the vote only if the two matched. As officials counted the ballots, Sazama came across several votes "where the signatures compared, but they looked like all the same handwriting." Sazama recalls that the votes "all looked like they had been signed by the same person, but the signatures compared, so they were counted."
Beyond the absentee questions, there were widespread problems with voter identification. Many polling-place officials on the reservations used extraordinarily lenient standards to determine the names of people who arrived to vote. South Dakota law does not require a voter to present identification or to sign a list when he votes. In the affidavits there are descriptions of a number of incidents similar to this one, written by a GOP poll watcher in Mellette County:
On many occasions during the voting process, I observed voters who presented themselves to election judges by stating their names. The election judges advised these voters that the name given was not on the official list of registered voters. On many occasions the election judges would then read several names to these voters, asking questions such as, "could it be under" a name entirely different than the name given by the voter. On numerous occasions, these voters would eventually (after one or more alternate names were suggested by the election judge) agree that one of the names suggested was in fact such voter's name. All of these voters were permitted to vote.
In Shannon County, home of the Pine Ridge Indian Reservation, another observer noticed that when election officials could not find a voter's name on the voter list, "The official and voter would then discuss aliases — all the while as the voter had full view of the names listed in the registered voter book. These voters would eventually agree that one of the names was in fact such voter's name. All of these voters were permitted to vote." And in Todd County, Ed Assman saw much the same thing. "A woman would come up and they'd say, 'What's your name?'" Assman recalls. "She'd give a name and they'd say it wasn't listed, then she would give another name and they'd say that wasn't listed, and then she'd give yet another name, and maybe that would work."
All the while, Democratic poll watchers pressured election officials to allow people to vote, whatever the problem with names. "They were like hawks. All day long the board was intimidated by them," says one local Republican election-board member who asked that his name and polling place not be used. In another county, where the Democratic team included a labor-union official from Washington, a GOP observer adds, "One of the board members said, 'We really felt intimidated by them, like they knew more than we did.' The election board was answering to them."
THE DEMOCRATS' MYSTERIOUS SURGE
In spite of the alleged improprieties that helped pile up votes for Johnson, Thune held a narrow lead through most of Election Night. According to an Associated Press report, early on Wednesday morning, when 838 out of the state's 844 precincts had reported (99.3 percent of the total), Thune led Johnson by 166,588 to 165,639 votes. It was close, but Thune led by nearly 1,000 votes with just six precincts left to count.
One of those precincts made no real difference in the vote; the delay was the result of a mechanical problem in a county that had experienced no irregularities. That left the last five precincts, all in Shannon County, as Johnson's last hope of victory.
And Shannon came through. Johnson won 91.4 percent of the county's vote — an unusually high percentage even in that overwhelmingly Democratic area — and pulled ahead as the last precinct was counted. But as it turns out, there were significant problems with many of the ballots that put Johnson over the top. According to local officials, hundreds of those ballots were incorrectly marked and were spit out by the machines that were supposed to read them. "Our optical scan machines rejected a lot of the ballots," says Sherrill Dryden, the auditor for Shannon and neighboring Fall River counties. "It slowed us down a lot." According to state rules, any ballot that is rejected by the scanning machine must be given to a resolution committee. If committee members believe they can determine the intent of the voter, they fill out a duplicate ballot and send it through the scanner. That takes a lot of time.
In Shannon County, the committee was made up of one Republican and one Democrat. The Republican half was a woman named Lee Linehan, who is the chairman of the local GOP. She had never before examined ballots and was unfamiliar with the rules governing the process. "I don't know the laws," she told National Review a few days after the election. "I did what they told me to do." It was a busy, stressful night, Linehan said, with the vote-counting lasting until about 6:30 a.m. on Wednesday. By that time, she was exhausted, having been up for more than 24 hours. "Things were kind of fuzzy," she said.
Interviewed again two weeks later, Linehan said she had since learned that many of the ballots she reviewed could have been declared invalid, because they did not contain marks in the designated space opposite a candidate's name. "I didn't know that," she says. "I'm not a lawyer." (The Democrat on the resolution committee was a lawyer.) But Linehan says she nevertheless believes the voters' intent was discernible on the ballots she corrected and sent through the scanner, and to throw them out would have disenfranchised the voters involved. Still, she wishes she had known more going into the process, given the problems that came up. "I believe the race would have been much closer had we paid more attention," she says.
AN ARMY OF LAWYERS
Late in the morning of November 6, just a few hours after Linehan examined her last ballot, Tim Johnson greeted a crowd of supporters at his headquarters in Sioux Falls. "I think we can be proud as South Dakotans," Johnson said, "that every vote was counted, every vote was counted correctly, and that our electoral system is one that we can trust with pride in our state."
It would perhaps be unrealistic to expect him to say anything else, but the accounts of dozens of eyewitnesses at the polling places suggest that, contrary to the senator's claim, the electoral system was not fully trustworthy and in fact failed to stop serious violations of election laws committed by Johnson's supporters. It might seem that those violations involved relatively small numbers of votes — maybe 200 in Todd County, another 250 in Shannon, 100 from Dewey County, and perhaps another 200 around the rest of the state. But Johnson won by just 524 votes, and it seems reasonable to conclude that, had Democratic misconduct not occurred in those counties, John Thune would have won.
Because Johnson's margin of victory was so narrow, Thune had the option, under South Dakota law, of calling for a recount. But much of the misconduct described in the affidavits would not have been uncovered in a recount — something Thune acknowledged when, on November 13, he announced he would not put the people of South Dakota through a "long, drawn-out, painful, and protracted struggle over 524 votes." Still, Thune broadly hinted that something had gone terribly wrong on Election Day. "Are there questions that need to be answered about the outcome of this election?" he asked. "I believe there are. Did things happen that shouldn't have in some polling places around the state? I believe they did."
Who's to blame? Certainly some of the problems with the election were homegrown. For example, there have long been allegations of voting irregularities on some of the reservations, particularly in tribal elections. But many of the problems in the Johnson-Thune race went far beyond local fraud, and are instead attributable to the team of party operatives sent to South Dakota from the DNC's headquarters in Washington.
While Republicans can legitimately complain about such tactics, the GOP also bears responsibility for not seeing the problem coming. Before the election, DNC chairman Terry McAuliffe promised an unprecedented legal presence at polls in every state. "The DNC has trained 10,000 lawyers that will be working in precincts all across America," McAuliffe said on television shortly before Election Day. "This is a very serious issue for us." But it wasn't a very serious issue for Republicans. "They're making noises about how many lawyers they are sending out into the precincts," one GOP official said before the election. "But there aren't 10,000 election lawyers in America."
Perhaps not, but there were a lot of them in South Dakota. And beyond the numbers, it appears that Republicans failed to fully comprehend the implications of McAuliffe's plan. The DNC chairman said his lawyers would be on the lookout to prevent voter fraud, which sounded benign enough. But the evidence from South Dakota suggests that some of them were on the lookout to commit voter fraud — to steal the election under the guise of preventing it from being stolen.
Even now, some Republicans don't seem particularly alarmed by what happened. They were able to win the Senate while losing South Dakota and are not inclined to fight over a race that would not affect the balance of power in Washington. But there is plenty of reason for the GOP to worry. The Democrats' South Dakota strategy — combining an aggressive voter-registration drive, hard-charging legal teams in the precincts, and a bit of old-fashioned fraud — could be a model for close races in years to come. Yes, Democrats lost the Senate. But their tactics won in South Dakota, and they might well win elsewhere in the future.