Erickson picks up two more votes in first day of Sioux Falls mayor's race recount
More than 31,000 ballots still to be retabulated; attorneys acknowledge litigation likely
Sioux Falls Mayor-elect Christine Erickson’s margin of victory in the June 23 runoff election against Sen. Jamie Smith grew after the first day of a recount.
But the four-vote lead the business owner and South Dakota policy influencer now holds comes with more than 31,000 ballots left to be retallied.
And the fierce debate and deliberation that came as the three-member recount board convened for eight hours Wednesday is expected to be a preview of eventual litigation that both campaigns predict will come before the contest is resolved.
Beyond establishing recount procedures involving voter privacy, ballot confidentiality and South Dakota election law, the board labored over eight ballots previously deemed “spoiled” — cast and received before polls closed on Election Day but omitted from the official count.
Composed of Matthew Tysdal, an attorney with Heidepriem, Purtell, Siegel & Hinrichs appointed by Smith; Woods, Fuller, Shultz & Smith law partner Justin Smith, appointed by Erickson; and retired Judge Rodney Steele, the neutral member selected by the city clerk with both campaigns’ approval; the board had unanimous agreement to leave two spoiled ballots out of the recount. One lacked a signature on the absentee ballot request form, an issue election workers discovered only after the ballot had been mailed to and returned by the voter. Another lacked a signature on the absentee ballot return envelope.
The recount board also unanimously agreed earlier in the day that 153 mail-in ballots received after Election Day could not be counted under South Dakota law.
But the panel split over six other spoiled ballots that an absentee ballot review board had rejected during the Election Day count — three because election workers determined the signatures on absentee ballot request forms did not match the signatures on the return envelopes ballots were sent back in, and three because voters were issued ballots from the wrong precinct.
While South Dakota law requires signatures on absentee ballot requests and return envelopes to match, Jamie Smith’s camp argued that discrepancies alone do not automatically disqualify a ballot.
An absentee ballot application signed in cursive accompanied by a return envelope signed in cursive, for instance, should not lead the recount board to conclude with certainty that the same person did not sign both documents, Tysdal argued.
“It is human nature. Anybody that’s being honest knows that your signature will vary,” he said, also citing the 1996 McEntire v. Wick case.
In that case, the South Dakota Supreme Court was asked to weigh in on a tight state legislative election recount between Democrat John McIntyre and Republican Hal Wick. After initially losing the race, Wick, a Sioux Falls lawmaket, won when the court ruled signature discrepancies were not disqualifying.
But Steele sided with Justin Smith, who argued the statute in question in the 1996 case has been updated and amended multiple times since.
Steele, who also served on a 2020 recount panel convened after Alex Jensen edged Theresa Stehly in a re-election bid for an at-large City Council seat, broke a stalemate over three ballots cast by voters in the mayor’s race who were issued ballots for the wrong precinct as well.
The dispute involved three voters who appeared at polling places serving multiple precincts — including the downtown absentee voting center — and were mistakenly issued ballots for the wrong precinct.
Steele sided with Justin Smith, finding the ballots should count because poll workers, not the voters, made the error.
“They were given the wrong ballot due to clerical error,” Justin Smith said. “The ballot they cast would have been the same.”
Tysdal dissented, arguing state law requires ballots cast in the wrong precinct to be rejected regardless of fault.
The three ballots were added to the recount.
When the board recessed shortly before 6 p.m., Erickson led Jamie Smith 18,283 votes to 18,279. Roughly 31,000 Election Day ballots remain to be retabulated.
The recount board will reconvene at 9 a.m. Thursday. Justin Smith said there is optimism the panel can complete its work Thursday but cautioned the recount could extend into Friday.
