• Tag Archives Constitution Party
  • Schreier Rebuffs State, Calls March Filing Deadline for New Parties “Severe Burden”

    Gary Johnson, Jill Stein, and Bernie Sanders voters, take note!

    The lawsuit filed by the Libertarian and Constitution parties last summer against Referred Law 19/Senate Bill 69 is still bubbling in federal court, although it’s no longer a lawsuit against Referred Law 19. We voters fouled up their original complaint by placing Referred Law 19 on the ballot and preventing it from taking effect. The state argued and Judge Karen Schreier agreed that the original complaint was not ripe because there is no certainty that Referred Law 19 will take effect (and I maintain that this wonky pile of election law technicalities favoring incumbents and eroding voter rights has almost no chance of winning over voters).

    One element of the dismissed challenge was the Libertarians and Constitution Partiers’ argument against RL 19’s change of the deadline for new political parties to officially organize by the first Tuesday in March. Facing rejection of their challenge to that proposed deadline, the plaintiffs decided to take a whack at the existing deadline of the last Tuesday in March (SDCL 12-5-1). Judge Schreier said have at it, and the Libertarians amended their complaint in January to contend that March 29 is about as unconstitutional as March 1. (Can we say that constitutionality is like pregnancy: a law is either constitutional or it isn’t, without degree?) The plaintiffs ask that the court set the new-party filing deadline at August 1.

    The state—i.e., defendants Secretary of State Shantel Krebs and Attorney General Marty Jackley—moved for summary judgment, saying South Dakota’s laws are reasonable and nondiscriminatory. Yesterday, Judge Schreier said the state is wrong and allowed the lawsuit to proceed to full argument.

    Judge Schreier notes that the Eighth Circuit (that’s includes us!) has some precedent that favors the plaintiffs:

    The cases most analogous to the facts before this court are McClain I and McClain II. The plaintiffs in McClain I challenged a statute requiring new political parties to file a petition with 15,000 signatures by June 1. The Eighth Circuit concluded the restrictions were “unnecessarily oppressive” and “unconstitutional.” McClain I, 637 F.2d at 1163. The statute in McClain II required petitions to be filed with 7000 signatures by approximately mid-April, which was 55 days before the state’s June primary election. Although the Eighth Circuit upheld these restrictions, it found that the burden imposed by the law was of “some substance,” and the court subjected the statute to strict scrutiny. McLain II, 851 F.2d at 1049. Here, the time burden imposed on plaintiffs is greater than the time burden imposed in McLain II because new political parties need to submit their declarations by late March—70 days before South Dakota’s primary election day. This early deadline is particularly oppressive because, as the court noted in McLain I, a third party candidate’s viability is largely determined after the major political parties have chosen their candidates and platforms. People often look to third party candidates when they are dissatisfied with the major parties’ nominees. The March deadline forecloses a candidate’s ability to run for office before the major parties have selected their nominees. Additionally, the deadline of March 29 requires petition circulation to occur during the cold, winter months instead of the springtime as occurred under McLain I’s June 1 deadline. While the signature burden here of 2.5% [6,936] signatures is comparable to the signature burden in McLain II and is less than in McLain I, the court finds that the late March time burden coupled with the substantial signature requirement is particularly troublesome. The reasoning of McLain I and McClain II supports a conclusion that South Dakota’s ballot access laws place a severe burden on plaintiffs’ rights [emphasis mine; Judge Karen Schreier, Memorandum Opinion and Order Denying Defendants’ Motion for Summary Judgment, Libertarian Party of South Dakota et al v. Krebs et al (4:15-cv-04111-KES), 2016.06.09, pp. 10–11].

    The state justifies this “severe” burden on new parties by contending that the Secretary of State needs time between the filing deadline and the beginning of early voting to prepare primary ballots. Judge Schreier boots that argument by pointing out that the state has not demonstrated “what interest South Dakota has in requiring new political parties to hold a primary election for their gubernatorial candidates. South Dakota allows parties to nominate candidates for president, lieutenant governor, attorney general, and other statewide offices at convention (SDCL 12-5-21), so why not governor? The plaintiffs, with the help of ballot access expert Richard Winger, contend that such disparate treatment of gubernatorial candidates is “irrational,” “discriminatory,” and “unreasonable,” and absent a good argument from the state, Judge Schreier is inclined to agree.

    Libs v. Krebs thus moves forward. If they can secure a swift ruling from Judge Schreier, the Libertarians could yet gain official party status and place Gary Johnson on the ballot as an official Libertarian alternative to the Republican nominee.

    This case should also be of keen interest to Bernie Sanders supporters. While out campaigning last night, I met a friend on Main Street who shares my love of Bernie Sanders. He is so dismayed by the Presidential nominees of the two major parties that he is organizing an effort to get Dr. Jill Stein of the Green Party on South Dakota’s Presidential ballot. Under current statute (SDCL 12-7-7) Stein supporters have to submit 2,774 signatures by August 2 to get the Green Party candidate on the ballot as an Independent. If the plaintiffs in Libs v. Krebs prevail, disaffected Sanders voters could go whole hog, collect 6,936 signatures, place Stein on the ballot as a Green Party candidate, and have official party status in place for the 2018 gubernatorial election. 6,936—that’s a bit more than a quarter of the folks who showed up to vote for Bernie in Tuesday’s disappointing South Dakota primary.



  • State Argues Lib/Const Lawsuit Against SB 69 Unripe; Plaintiffs Expand Complaint to Challenge Current Petition Deadline

    I learn from Richard Winger’s Ballot Access News that I’m in cahoots with Marty Jackley again.

    On June 15, the Libertarian and Constitution parties sued South Dakota over Section 12 of Senate Bill 69 (now Referred Law 19, but I’ll cite it as Senate Bill 69 here to reflect the term used in the court filings), contending that the first Tuesday of March is an unconstitutionally early deadline for new parties to submit their petitions for recognition.

    Two weeks later, my friends and I successfully blocked all of Senate Bill 69 from taking effect by filing a petition to refer SB 69 to a public vote in November 2016. On July 9, Attorney General Jackley’s office moved to dismiss the lawsuit, arguing to the U.S. District Court that the successful referendum petition renders the plaintiffs’ claim unripe. The 2016 election will be conducted under current statute, not under the earlier SB 69 deadline that the Lib/Const lawsuit originally challenged. You can’t sue the state over a law it has not enacted and may never enact, so the court should toss the case.

    In other words, by putting Senate Bill 69 to a vote, I handed Marty Jackley an out from the Lib/Const lawsuit. South Dakota—Land of Infinite Irony.

    The plaintiffs responded on July 21 with a motion to amend their complaint to also challenge (plaintiffs’ italics!) the existing party-filing deadline of the last Tuesday in March. Their brief in support of this motion to amend says, “Had Plaintiffs known at the time they filed this action that SB 69 would be referred to a popular vote, Plaintiffs would have included a claim challenging the current deadline.” (Evidently the June 15 filing was a vote of no confidence in our petition drive. Thanks, guys.) In their brief opposing the state’s motion to dismiss, the plaintiffs contend that SB 69 is still in play. If voters approve SB 69 in the November 2016 general election, it could be applied retroactively to disqualify new parties who filed for recognition after the SB 69 deadline:

    It is not clear, for example, if approval of the amendment of Section 12-5-1in 2016 would be applied retroactively, since the amendment was enacted in 2015. In any event, new political parties would not know if they must now submit their declarations by the last or first Tuesday of March 2016 [Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss and Alternative Motion for Change of Venue, Libertarians et al. v. Krebs and Jackley, 2015.07.22].

    The plaintiffs appear now to be reaching. When South Dakota voters passed Referred Law 12, the indoor smoking ban, in 2010, the state did not go back and write tickets to people who smoked in bars between July 1, 2009 and November 2, 2010. Referred Law 12 took effect on November 10, 2010, per state law concerning referred measures. The same happens here, as made clear by the state’s brief to dismiss: SB 69 is not in effect, never took effect, and will not be in effect during the 2016 petition and election cycle (but see p.s. #2!).

    The plaintiffs make me a little nervous by suggesting that the court should hear their argument against one section of Senate Bill 69 to avert a costly and unnecessary public vote:

    Failure to review the constitutionality of SB 69 before it is submitted to the electorate could also result in a useless expenditure of money and effort. As the New Jersey Supreme Court noted in Committee to Recall Robert Menendez from the Office of the U.S. Senate v. Wells, 7 A.3d 720, 733 n. 4 (N.J. 2011), “many courts including New Jersey’s subscribe to the view that judicial review is permitted when the pre-election objection concerns the facial constitutional validity or form of the measure.” (Citations omitted). As a result, the court in Wells entertained a pre-election challenge to the popular vote recall of a siting United States Senator. It held that because “[t]he issues in dispute are ‘purely legal,’” id. at 731, “there is a sufficient showing of harm that the parties would suffer if we were to abstain from resolving this case, “ id. at 732, and “[t]he recall initiative . . . injects uncertainty and instability into the State’s electoral scheme.” Id. As a result, the court found the case was ripe for resolution before the referendum was held. For similar reasons, Plaintiffs’ believe this case should be deemed ripe for review [Plaintiff’s Brief…, 2015.07.22].

    Hold on, Libertarians, let’s get back on the same team here. In the Menendez recall case, New Jersey residents were trying to get rid of a sitting U.S. Senator by recall election, for which there is no Constitutional provision. The matter was ripe prior to the election because the election itself was the object of dispute. The New Jersey Supreme Court ruled the election itself was unconstitutional and could not be held. Libertarian Party v. Krebs disputes the constitutionality of one section of Senate Bill 69. The constitutionality of the referendum vote is not a matter of dispute. The Lib/Const lawsuit could prevail against Section 12 without stopping the referendum vote to reject the other 23 sections of this bad law.

    Referring Senate Bill 69 to the ballot as Referred Law 19 has complicated the Libertarian and Constitution parties’ lawsuit against Section 12 of Senate Bill 69. So yes, in a way, I’ve offered Jackley a lifeline out of another lawsuit he would lose.

    The plaintiffs should continue their lawsuit and focus on overturning the existing petition deadlines for new parties. But dismissal of the case at this point wouldn’t be all bad: the Libertarian Party, the Constitution Party, and their allies at the American Civil Liberties Union could redirect their unused lawsuit resources to helping defeat Referred Law 19, which would be a much broader victory for third parties and voting rights in South Dakota.

    p.s. #1: Barring dismissal, Jackley’s assistant Ellie J. Bailey also asks the court to move the case from the Southern Division in Sioux Falls to the Central Division in Pierre, because defendants Jackley and Secretary of State Shantel Krebs are in Pierre and the contested actions all took place in Pierre. The plaintiffs point out that none of them live in Pierre: Libertarian chief Ken Santema lives here in Aberdeen, Libertarian plaintiff Bob Newland lives in Hot Springs, and Constitution Party plaintiffs Lori Stacey and Joy Howe live in Sioux Falls. I say go ahead, change venue… to Aberdeen, so I can live-blog the trial!

    p.s. #2: In her July 8 affidavit supporting the state’s motion to dismiss, Secretary Krebs notes that “As of today’s date, no challenge to the validation of the SB 69 petition has been filed with the Secretary of State’s office.” Any challengers have through July 29 to submit such a challenge, and a challenge may be tempting, given that the SB 69 petition passed muster with just 308 signatures to spare (a 2.2% cushion above the 13,871-signature minimum). But a challenge would undermine the state’s motion to dismiss the Lib/Const lawsuit. So we must wonder: in the big happy GOP family, have SOS Krebs and AG Jackley put out the word to their Republican brothers and sisters to leave the SB 69 petition unchallenged so the state can defuse the Lib/Const lawsuit? Or, seeing that the plaintiffs are shifting their argument to challenge the pre-SB 69 deadline, will the Republicans who wanted SB 69 to further solidify their power fire away with a petition challenge? We’ll find out within six days!



  • SB 69 and SB 177 Petitions Head to Pierre Monday; SB 69 Lawsuit Not Liberal Plot

    In a week consisting mostly of responding to remarkable political news with regurgitated press releases from its patrons instead of any original analysis, Dakota War College limps forward with a question about opposition to Senate Bill 69 based on assumption and error. “Is SB69 lawsuit a stop gap effort because they know referral isn’t going to happen?” DWC’s Pat Powers asks:

    The discussion centered around an assumption that the movement to refer Senate Bill 69 (which in part was designed to make South Dakota more compliant with federal mandates to allow at least 45 days for military voting) is likely not going to be successful one, and may fall short of it’s [sic] goals. The talk was that, recognizing that likely outcome, the liberal powers that be decided to move forward with the lawsuit in an attempt to take up another front against the clean-up legislation [Pat Powers, “Is SB69 Lawsuit a Stop Gap Effort Because They Know Referral Isn’t Going to Happen?Dakota War College, 2015.06.26].

    Let’s count the errors:

    1. Some friends and I will walk into Secretary of State Shantel Krebs’s office on Monday around 11:00 or 11:30 (depending on how many last-minute sheets we need to notarize) to submit two referral petitions—one for Senate Bill 69, the Incumbent Protection Plan that Powers so loves, and one for Senate Bill 177, the youth minimum wage. I will sign an affidavit swearing that, to the best of my knowledge, the sheets for each petition “contain a sufficient number of signatures to be certified to the ballot.” Whether Team Krebs’s 5% sampling of those signatures produces an error rate that throws out too many signatures is unknowable, although I want to believe that the circulators of these petitions have run a tight ship.
    2. There are no “liberal powers that be.” What state are we living in again, Pat?
    3. Liberals did not decide to file the lawsuit against Senate Bill 69. The plaintiffs are the Libertarian and Constitution parties of South Dakota, two groups that exist as a response to the South Dakota Republican Party’s failure to be conservative enough.
    4. The lawsuit cannot be considered a “stop-gap” measure. “Stop gap” implies a temporary measure taken in anticipation of some subsequent permanent solution. The lawsuit is not a placeholder or a delaying tactic; it is a challenge to one clearly unconstitutional provision of SB 69 that seeks to make it harder for new parties to challenge the existing powers that be.
    5. Senate Bill 69 has nothing to do with military voting. Powers trotted out that myth in May for lack of anything good to say about Senate Bill 69’s attack on voting rights. Military voting was not part of the genesis or discussion of Senate Bill 69. Senate Bill 69 arose from concerns about the petition fraud committed by Annette Bosworth and Clayton Walker during the 2014 primary. Senate Bill 69 contains no provisions to guarantee or expand military voting rights.
    6. Senate Bill 69 is not “clean-up legislation”… unless Powers means it helps incumbents clean up at the polls. Senate Bill 69 dirties up our statutes with unconstitutional violations of the rights of new parties and voters who want to support Independents. Senate Bill 69 dirties Christmas by pushing candidate petition circulation back into December. Senate Bill 69 dirties democracy by deterring major-party candidates with unnecessary increases in the number of signatures they must collect to make the ballot. These provisions do nothing to clean up the mess of petition fraud and only deter candidates and voters from participating in the democracy this bill soils.

    DWC’s misportrayal of Senate Bill 69 and the efforts to stop it are predictable. Powers has never understood Senate Bill 69. He is only propagandizing on behalf of his patrons and not trying to help South Dakotans understand the harm this bill does to democracy.

    See you in Pierre on Monday!



  • Libertarian and Constitution Parties Sue South Dakota over Senate Bill 69

    Fighting for Democracy in South Dakota: Libertarians, Constitution Partiers, the ACLU... and Brendan Johnson!
    Fighting for Democracy in South Dakota: Libertarians, Constitution Partiers, the ACLU… and Brendan Johnson!

    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.