No wonder my neighbor Ken Santema hasn’t been blogging much; he’s been working on a lawsuit with Brendan Johnson!
Senate Bill 69, the misfiring petition reform bill that Republican legislators turned into a bag of anti-democratic tricks, faces double trouble. On top of the current petition drive to refer the law to a public vote, minor South Dakota political parties are suing to overturn one of its numerous provisions.
As reported here on March 30, the Libertarian Party has decided to sue South Dakota over Senate Bill 69. Joined by the Constitution Party South Dakota chair Lori Stacey, Joy Howe, and Bob Newland, Libertarian Party South Dakota chair Ken Santema has filed this Complaint for Declaratory and Injunctive Relief in U.S. District Court in Sioux Falls. Santema et al. contend that Section 12 of SB 69, in amending SDCL 12-5-1 to set the deadline for filing petitions to organize a new party on the first Tuesday of March, violates the Constitution:
…South Dakota’s deadline is nineteen days earlier than the Ohio deadline found to be too early in Anderson v. Celebrezze. Early deadlines such as South Dakota’s are unreasonable and stifling because they require new or newly-qualifying political parties to organize and obtain signatures months before the major political parties have selected their candidates and chosen their platforms, and thus months before most voters are likely to be drawn to minor parties. By the time voter dissatisfaction has grown to the level where it could support minor parties, it is too late in South Dakota for those parties to place a candidate on the ballot. Therefore, early deadlines such as the one codified in SB 69 are anti-democratic and discriminate against those candidates and their supporters who wish to participate meaningfully in the electoral process [plaintiffs’ complaint, Libertarian Party et al. v. Krebs and Jackley, Civ No. 15-4111, U.S. District Court of South Dakota, Southern Division, filed 2015.06.15].
The complaint argues that requiring new parties to file petitions 98 days before the primary is “oppressive and unnecessarily burdensome” to minor parties and to the voters who would like the chance to support them. Minor parties like the plaintiffs do most of their fundraising during election years, “after the worst winter months are over and the election draws nearer.” The complaint cites compelling precedent from the U.S. Eighth Circuit (of which South Dakota is part), which declared unconstitutional a Nebraska law requiring third parties to organize 90 days before the primary:
In our estimation it is completely unreasonable and unrealistic for a state to provide by statute that a person cannot get his name on the state’s presidential ballot as a third party candidate unless that party has qualified as a party in advance of primary elections and at a time when the individual’s candidacy itself is purely potential and contingent upon developments that may occur months later [U.S. Court of Appeals, Eighth Circuit, MacBride V. Exon, 1977.06.29].
The complaint asks the court to block implementation of Section 12 of SB 69 and, in the absence of Legislative action, to impose new-party filing deadlines like those Nebraska implemented following MacBride v. Exon: let new parties seeking to participate in the primary file by March 29, and let new parties seeking to participate in the general file by August 1 of the election year.
Not addressed in this lawsuit is the other glaringly unconstitutional aspect of SB 69, Section 7, which takes away the right of Republicans, Democrats, and other party members to nominate Independent candidates. The omission of Section 7 is understandable, given that the plaintiffs are focused on gaining ballot access for their minor parties. However, SB 69 takes Independent-nominating rights away from these plaintiffs as well as from major-party members. Santema, Stacey, Newland, and Howe have standing; they could (and I would say should) add a challenge to Section 7 to their lawsuit.
Of course, this lawsuit becomes moot if the referendum drive against SB 69 succeeds and South Dakotans overturn Senate Bill 69 in its entirety.
Representing the plaintiffs are M. Laughlin McDonald and Stephen L. Pevar of the American Civil Liberties Union and Brendan Johnson of Robins Kaplan LLP. Yes, the supposedly liberal ACLU and Democrat Brendan Johnson, defending the rights of Libertarians and the Constitutionalist ultra-cons.