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Constitution Party Definitely Not Getting Evans and Schmidt on Ballot

By Cory Allen Heidelberger on 2016-09-08

No, really, I mean it, says Judge Karen Schreier. Kurt Evans and Wayne Schmidt don’t get spots on the 2016 ballot.

In an August 31 ruling, Judge Schreier reiterates the logic of her August 15 ruling, in which she said she cannot let the Constitution Party run Evans for U.S. Senate and Schmidt for District 23 House because the litigants are not challenging the specific statutes keeping Evans and Schmidt off the ballot. The Constitution Party and the Libertarian Party complaint challenges SDCL 12-5-1, which sets the petition requirements and deadline for new political parties to gain official recognition and permission to participate in the primaries. The Evans/Schmidt ballot access claim hinges on overturning either SDCL 12-5-21, which lists the statewide offices for which parties may nominate candidates at convention, without a primary, or SDCL 12-6-1 and SDCL 12-6-4, which set the end-of-March petition deadline for party candidates for offices requiring a primary.

The plaintiffs did argue after the August 15 ruling that they have addressed those statutes and that the judge has an obligation to restore the rights those other statutes abridge. Judge Schreier says that relief can only come if the plaintiffs prevail in their complaint, and they have not prevailed, and that even then, the relief the court may offer won’t be the permanent injunction and ballot access the plaintiffs are demanding for Evans and Schmidt.

Note that Judge Schreier still isn’t giving a final ruling on the fundamental constitutional questions of whether South Dakota’s party-organization deadline is too early or whether requiring some statewide candidates but not others to stand for primaries serves a compelling state interest. We may need a whole nother lawsuit to draw useful answers to both questions… or the Constitution Party may just need to get its act together and recruit a gubernatorial candidate who can win enough votes to keep its party status in 2018.

Published in South Dakota

15 Comments

  1. Kurt Evans 2016-09-08 18:02

    I’m not sure how Judge Schreier can say we were required to challenge the constitutionality of SDCL 12-5-21 when we explicitly affirmed in our last reply brief that SDCL 12-5-21 is constitutional:

    In denying Plaintiffs’ motion for a permanent injunction, the Court stated: “To be successful on their motion for a permanent injunction, this court would have to address the constitutionality of SDCL 12-5-21. But plaintiffs did not challenge the constitutionality of SDCL 12-5-21 in their amended complaint.” Docket 68 at 4 (footnote omitted). Plaintiffs respectfully ask the Court to reconsider that conclusion. Plaintiffs have no reason to challenge SDCL 12-5-21, nor does this Court need to address the constitutionality of that statute in assessing the constitutionality of SDCL 12-5-1.

    Indeed, Plaintiffs firmly believe that SDCL 12-5-21 is constitutional. [emphasis mine—KE] The problem with South Dakota’s statutory scheme is not 12-5-21, but 12-5-1, which (1) creates an unreasonable deadline in violation of the First Amendment, and (2) creates a set of candidates who are treated more onerously than the candidates covered by 12-5-21, in violation of the Equal Protection Clause. With respect to the latter, as this Court explained in its Docket 43 Order, “candidates in South Dakota are being treated differently based on which office they seek, and similar to the defendants in Illinois State Board of Elections, defendants here have ‘advanced no reason, much less a compelling one’ for why the distinction is necessary.”

    http://ballot-access.org/wp-content/uploads/2016/08/South-Dakota-August-26-brief.pdf

    Requiring primary elections for certain offices doesn’t necessarily create a severe burden for existing parties, but it does create a severe burden for new parties because it forces us to comply with an unconstitutionally early deadline in order to run candidates for those offices.

    It honestly seems to me that Judge Schreier doesn’t fully understand our arguments, and the fact that her August 31 opinion refers to me as “Kent” Evans does little to build my confidence.

    The ruling apparently freed up Thune to dump $2 million on the smear artists at the NRSC: http://www.usatoday.com/story/news/politics/onpolitics/2016/09/07/thune-gives-2-million-gop-senate-races/89982764/

    Thune and his cronies in the state legislature are setting disastrous precedents for the future of representative government in South Dakota.

  2. Bob Newland 2016-09-08 20:12

    There will always be a warm place in my heart for the guy who whipped Thune in his challenge to Tim Johnson and you in ’02 (or whenever it was). And AFTER you announced your withdrawal. That was a historic SoDak political moment. Salud, Kurt.

    For the record, I honestly mean all that without a bit of sarcasm (except that directed at Thune).

  3. grudznick 2016-09-08 20:49

    I was really hoping Mr. Evans would be on the ballot. Salud, Mr. Evans.

  4. grudznick 2016-09-08 21:06

    Salud, Bob.

  5. Kurt Evans 2016-09-08 21:20

    Bob Newland writes:

    There will always be a warm place in my heart for the guy who whipped Thune in his challenge to Tim Johnson and you in ’02 (or whenever it was). And AFTER you announced your withdrawal. That was a historic SoDak political moment. Salud, Kurt.

    Well, I believe Thune would have lost by a wider margin if I hadn’t run:
    http://jacobtlevy.blogspot.com/2002/11/yknow-funny-thing-about-john-millers.html
    http://jacobtlevy.blogspot.com/2002/11/rachel-dicarlo-at-weekly-standards.html

    But thanks anyway, Bob. There’s likewise a warm place in my heart for you and Nathan Barton and the rest of South Dakota’s underappreciated Libertarian Party pioneers.

  7. Bob Newland 2016-09-08 21:22

    “I believe Thune would have lost by a wider margin if I hadn’t run.” — Kurt Evans

    I don’t. I think he would have won. I don’t care what your links say.

  8. Bob Newland 2016-09-08 21:25

    However, I followed your links and read Jake Levy. Now I’m even more sure your voters whipped Thune.

  9. Bob Newland 2016-09-08 21:29

    I find it entertaining, the lengths to which statists will contort facts to support a false two-party system.

  10. Kurt Evans 2016-09-08 22:18

    Bob Newland writes:

    I find it entertaining, the lengths to which statists will contort facts to support a false two-party system.

    So do I, Bob, but Levy is a libertarian.

  11. grudznick 2016-09-08 22:28

    Mr. Evans, a few of my friends have nearly convinced me to register as a Libertarian this round. I think it might be best.

  12. Bob Newland 2016-09-08 22:53

    Even libertarians can make mistakes. If they’re not me.

  13. Kurt Evans 2016-09-09 10:12

    Bob Newland writes:

    Even libertarians can make mistakes. If they’re not me.

    If I ever need to know what “Aleppo” is, I’ll call. :-)

  14. Kurt Evans 2016-09-10 18:46

    In my first comment above, I’d written:

    Requiring primary elections for certain offices doesn’t necessarily create a severe burden for existing parties, but it does create a severe burden for new parties because it forces us to comply with an unconstitutionally early deadline in order to run candidates for those offices.

    I’d like to make another point here. It was the attorney general’s office that brought up well-run primaries as a “compelling state interest” that supposedly justifies the severe burden of the early filing deadline for new parties. That in turn forced us to raise the question of what compelling state interest requires a new party to participate in primaries in the first place.

    As indicated in my previous comment above, it was never our intent to challenge SDCL 12-5-21. We addressed the issue of primary elections after our opponents raised that issue in defense of SDCL 12-5-1.

    If you can follow this explanation, you’re apparently doing better than the judge.

  15. Kurt Evans 2016-09-10 19:18

    One more thing, for the record. If the judge believes SDCL 12-5-1 places a severe burden on new parties, and if the attorney general’s office has demonstrated no compelling state interest to justify that burden, then it was entirely within the judge’s authority to grant an injunction placing a new party’s candidates on the ballot, regardless of what other laws would normally govern that process.

Comments are closed.