By hand or machine: Tabulator bans go to voters in three counties Tuesday • South Dakota Searchlight

On Tuesday, when voters in three counties decide whether to ban tabulator machines in future elections, it will be the culmination of a statewide citizen group’s multi-year movement to switch South Dakota elections to hand counting.

The votes – in Gregory, Haakon and Tripp counties – were forced by citizen-initiated petitions. Proponents of the ban claim that tabulator machines lack transparency, that election officials are breaking a state law that dictates where ballots can be counted, and that hand counting ballots is cheaper than machine counting. County auditors — the elected officials who oversee local elections — say machine counting is accurate, transparent and more efficient, and they worry a switch to hand counting could be more expensive.

Whatever the outcome, members of the South Dakota Canvassing Group plan to continue their push for hand counting. 

“There’s a fire going here and will not be going out soon,” said Steve McCance, one of the lead petitioners for the Gregory County ballot question.

The nonprofit organization is part of a nationwide movement that started after the 2020 election, motivated in part by claims that the election was “stolen” from former president Donald Trump. Trump filed more than 60 lawsuits contesting either the election or the way it was administered. None of the cases succeeded, and he’s currently under criminal prosecution for allegedly attempting to subvert the election.

Polling by South Dakota News Watch and the Chiesman Center for Democracy shows that 67% of South Dakota voters accept the outcome of the 2020 presidential election, but only 20% are “very confident” that American election results reflect the will of the people.

Robert Tate, one of Tripp County’s lead petitioners, said it’s important that Americans have confidence in elections.

“If we elect an elected official and he’s not doing a good job, then we complain about him for four years and then we can vote him out,” Tate said. “But if we don’t have confidence in our elections and then our governor or our president isn’t doing a good job, we complain about how they stole the election. We don’t want that. That’s not good. ”

Several tabulator ban petitions were circulated at the county level across the state earlier this year, with some counties — including Lawrence, McPherson and Charles Mix counties — rejecting them. Officials in some counties said the petitions could conflict with federal election requirements, according to their legal counsel.

Push for hand counting focused on transparency

Aside from concerns about accuracy, South Dakota Canvassing President Jessica Pollema said the group is dedicated to transparency.

“The elections belong to the people, but they’ve been contracted out to a third party that’s blacked out an audit trail. People don’t trust that,” Pollema said. “Once there’s full transparency, people will possibly be able to trust the system again.”

South Dakota county auditors contract with Election Systems and Software, known as ES&S, a national company based in Omaha, to lease and operate tabulator machines. The company “doesn’t sign an oath,” Pollema said, and the group’s members have not been able to audit the system themselves through public records requests.

Tate said he and other members of South Dakota Canvassing asked for cast vote records and were told they “did not exist.” Activists nationwide requested such records.

A cast vote record is the electronic representation of how a voter voted (without personally identifying information), which is not a public record in the state and is only able to be produced with certain software in a few counties, officials said.

Will Adler is the associate director of the Elections Project with the Bipartisan Policy Center, which advocates for election policy reform approved by a task force of election officials aiming to make elections more secure, fair and trustworthy.

Adler said allowing cast vote records and images of marked ballots to be public records would “improve transparency a lot.” Two bills introduced during the 2024 legislative session that would have made cast vote records public — one introduced by the Secretary of State’s Office and one by Sen. Tom Piscke, R-Dell Rapids — failed to pass out of committee.

“In general, that’s a more promising avenue to move towards that would allow members of the public to understand why they can trust the tabulations,” Adler said.

State law allows for several forms of transparency in elections, including the use of poll watchers to observe the election process and public test runs of tabulators before each election to check for accuracy. Petitioners in Tripp County held a hand counting seminar the same day as the county’s tabulator test on May 30. 

In 2023, the South Dakota Legislature addressed transparency by passing a bill to require  post-election audits. County auditors must randomly audit at least 5% of ballots cast in voting precincts after the primary and general elections. South Dakota was one of the last few states to implement audits. 

Some counties have decided to audit more than the required 5% after the primary, including Tripp, Haakon and Gregory counties.

Adler said post-election audits are a step in the right direction, though he said some other states are implementing “risk limiting audits,” which can change the audit amount based on the closeness of the race.

“This allows you to have really high confidence in a really efficient way and leveraging that human insight,” Adler said. “That allows you to have quick tabulation and quick comprehensive audits.”

Petitioners, auditors differ on cost estimates

In Haakon County, Auditor Stacy Pinney and the county state’s attorney estimates hand counting could cost more.

“I plan and prepare for the worst, but I work for the best outcome,” Pinney said.

The worst case scenario, for Pinney, is that it could take up to 15 hours for paid election workers to count the ballots, making mistakes and having to recount. County commissioners set election worker rates at the beginning of an election year. Precinct workers are required to be paid, according to state law.

The three county auditors’ estimated budgets for machine counting vs. hand counting vary, depending on how long it could take workers to count ballots. At their quickest possible pace, hand counting would be cheapest, though auditors don’t expect that.

“Honestly, we know it would never take just an hour,” said Tripp County Auditor Barb DeSersa. “Some precincts are larger than others, so it’s hard to judge how many hours it would take. It also depends on the voter turnout.”

South Dakota implemented machine tabulators in the early 2000s. Mark Nelson, one of the lead petitioners in Haakon County, was an election worker over 40 years ago and said hand counting back then “wasn’t that difficult.”

But even if it is more expensive to hand count, that money stays within the county by paying residents rather than an out-of-state corporation, said South Dakota Canvassing’s Pollema.

Pollema said hand counting can be cheaper, especially if using a specific kind of tally sheet that her group has determined can be used to count 250 ballots per hour with up to 11 races on one ballot with a trained team.

Adler said that even if auditors used the tally sheet South Dakota Canvassing Group is proposing, hand counting could still have a higher risk of error and costs.

“Regardless of how you implement it, the fact is humans are extremely bad at repetitive tasks like counting ballots,” Adler said, referencing studies on human error in different industries. “I think there’s just no way around it.”

Tripp County hand counted ballots for the 2022 election. DeSersa was awake for 40 hours straight between Election Day and the day after, with a significant amount of that time supervising hand-counters. Several races had to be recounted, sometimes three or four times that night.

Group alleges elected officials breaking law

Pollema and petitioners also claim that ballots must be counted within the precinct boundaries where they were cast, and doing otherwise is unlawful. But that statute only refers to hand counting ballots, not tabulating, said Sara Frankenstein, a Rapid City lawyer who specializes in election law.

“With the advent of automatic tabulating systems, we have a chapter in our South Dakota code that governs when those machines are used,” Frankenstein said, referencing a statute regarding the auditor setting up a central counting location (which is usually the courthouse or the county administration building) and keeping the process open to the public.

Frankenstein said the allegations are “reckless.”

“Ballots absolutely can and are required to be taken to the central location the county auditor deems,” Frankenstein said, referring to elections that include tabulator machines. “So they aren’t doing anything illegal by following those very laws.”

Whether the bans pass or not, South Dakota Canvassing will continue pushing for hand-counted elections, attending state Board of Elections meetings and supporting legislative efforts that align with their values, Pollema said.

“The people need to have the government under their watchful eye. That’s why we’re in this mess,” Pollema said. “We’ve been a little apathetic to our approach of watching our government. Now the people realize what’s going on and have decided to participate at all levels.”