As a traditional pro-liberty Christian, I’ve tried to listen with an open mind to those who say Christ wants me to vote for Donald Trump, but I’m not convinced.
The policies of the Clintons may decrease our happiness, but the words of Donald Trump are decreasing our goodness, and that’s even worse. Darrell Castle of the Constitution Party is a traditional pro-liberty Christian himself, and even a few hundred votes for him will send an important message to South Dakota’s other three political parties [Kurt Evans, letter to the editor, Mitchell Daily Republic, 2016.11.05].
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.
Brendan Johnson is working hard… for the Constitution and Libertarian parties! Acting as counsel for South Dakota’s two teeniest political parties, Johnson and ACLU attorneys M. Laughlin McDonald and Stephen L. Pevar yesterday filed a Motion for Reconsideration for the Constitution Party’s effort to run Kurt Evans for U.S. Senate and Wayne Schmidt for District 23 House.
Not only did Plaintiffs raise this issue in their Brief In Opposition to Defendants’ Motion for Summary Judgment, Doc. 33, but this Court addressed and discussed the issue in detail in its order denying Defendants’ motion for summary judgment. Doc. 43 at 13-6. As the Court concluded: “Although South Dakota has an important regulatory interest in ensuring its elections are fair and efficient, defendants have advanced no reason why primary elections are necessary for some candidates but not others. Because defendants have not given any reason for the disparate treatment, summary judgment is denied.” Id. at 15-6. Thus, the issue of disparate treatment of candidates was in fact raised by Plaintiffs in their pleadings and was addressed by this Court in its prior order. Plaintiffs submit that this prior discussion and ruling by the Court on the disparate treatment issue requires the Court to reconsider its Memorandum Opinion and Order Denying Plaintiffs’ Motion for Permanent Injunction (Doc. 68) [emphasis mine; Plaintiffs’ Brief in Support of Motion for Reconsideration, Libertarian Party of South Dakota et al. v. Shantel Krebs et al., Civ No. 15-4111-KES, filed 2016.08.17].
Johnson, McDonald, and Pevar also contend that the Federal Rules of Civil Procedure don’t require exhaustive complaints; rather, the rules encourage concise complaints “giving the adversary notice while leaving the rest to further documents.” The rules also say judges should grant due relief “even if the party has not demanded that relief in its pleadings.” The plaintiffs point to this summer’s big abortion ruling, Whole Woman’s Health v Hellerstedt, which itself cites Citizens United v. FEC:
Federal Rule of Civil Procedure 54(c) provides that a “final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings,” and this Court has held that if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is “proper,” Citizens United v. Federal Election Comm’n, 558 U. S. 310 . Pp. 10–15 [United States Supreme Court, opinion, Whole Woman’s Health et al. v. Hellerstedt et al., 2016.06.27].
The plaintiffs contend that the Constitution Party has a federal right to nominate Evans and Schmidt without a primary and that South Dakota law violates that right. If the court can be persuaded to reconsider the point, Evans and Schmidt could still practically make the ballot. Tuesday was the day for Secretary Krebs to certify candidate names, but county auditors don’t have to print ballots until September 21, two days before early voting begins.
Alas, we won’t get a straight answer on the constitutionality of South Dakota’s differing standards for candidate ballot access. Yesterday, federal Judge Karen Schreier threw out on a technicality a motion from the Constitution Party of South Dakota to place candidates on the U.S. Senate and District 23 House general election ballots. The Constitutionists tacked their appeal to nominate Kurt Evans for U.S. Senate and Wayne Schmidt onto a pending lawsuit in which South Dakota’s Constitutionists and Libertarians are challenging South Dakota’s ballot access rules for new parties.
In her ruling yesterday, Judge Schreier does not address the merits of the Constitutionists’ claims. The judge only notes that the plaintiffs failed to properly amend their complaint to address the Evans/Schmidt issue.
I check the Vote605 app (which allows phone users to look up folks’ voter registration by name and ZIP, a feature missing from the browser-based Voter Information Portal, which requires the less convenient, more intrusive search by birthdate) and discover that the sometimes Independent, sometimes Libertarian Wessington Springs man has changed his voter registration back to Democratic for the 2016 primary.
Yes, back. Evans tells me he was an active Democrat back in his SDSU days. He was even a counselor at the South Dakota Teen Dem camp in 1989. Evans says he shifted to the right when he became uneasy with what he perceived as the left wing’s generosity with other people’s money and the right wing’s generosity with its own money. (Feel free to press generation-ago Kurt on the question of Ronald Reagan’s generosity with future generations’ money via deficit spending.) Evans says Democratic support for abortion, including the 1992 DNC platform’s support for public funding for all reproductive health services, capped his turn away from the party.
But in the increasingly bizarre 2016 political landscape, Evans has re-registered so he can vote for Democrat Hillary Clinton in our June primary. Evans describes Clinton as “the least dangerous major-party candidate left since Rubio suspended his campaign.”
“Johnson went so far as to say he would force a Jewish baker to make a cake for a Nazi,” Evans said, referring to religious freedom protection laws. An evangelical himself, he believes that a Clinton-Trump race would put some of those voters in play and libertarians should try to reach them.
Alas, in South Dakota, Evans may not have the opportunity to vote for either Johnson or Petersen, since the South Dakota Libertarian Party failed to capitalize on surging voter interest in outsiders to recapture its official party status this year. Thus, we have the odd spectacle of a libertarian evangelical, the kind with whom Senator Ted Cruz thought his preachifying would resonate, signing up as a Democrat and saying Hillary Clinton is the least bad choice in the field.
Of course, in the eyes of the Federal Election Commission, the Evans campaign never existed. The FEC database shows no filings for Evans for Senate.
So much for my plan to use Evans as a conservative wedge to erode John Thune’s base and offer the Democratic candidate a path to victory. (That’s a triple mixed metaphor, right? Which image do you prefer: wedge, sandpaper, or shovel?) Along that line, we Dems could try to convince Stace Nelson to enter the race as a Howie-style Independent or maybe a Libertarian standard-bearer, but Nelson appears to have allowed his campaign website to lapse. Alas! If we Dems want to split the Republican base, it looks like we’ll have to do it ourselves.
The best ground on which Democrats might take that tack is Evans’s concern about privacy and civil liberties. If we can convince Libertarians and principled conservatives that John Thune’s support for an unchecked military-police state poses a greater threat to their practical liberty than the humane social policy of the Democratic Party, we just might pull some votes from that camp.
But that’s marginal gain, to be prioritized behind straight-up Democratic voter re-registration!
I like Kurt Evans. I respect him for running for office. But I now abrogate that like and respect to discuss using Evans to serve my party’s political goals.
We’ve heard some media discussion of the possibility that Senator John Thune could get a “historic” second free pass with no one challenging him for his seat in 2016. I’ve counseled patience; the South Dakota Democratic Party will find a challenger for our very beatable senior Senator.
But Thune already has a challenger. Kurt Evans announced his Independent candidacy for Senate last December. With his Libertarian leanings, Evans has more inroads with Thune voters than any Democrat would. We may generally discount Evans’s ability to raise money and run a serious statewide race, but without breaking a big sweat, Evans got 20% of South Dakota voters to mark his name last year as the Libertarian candidate for state auditor against Republican Steve Barnett. (How many of that 20% chose Evans for lack of any other alternative and how many of them chose Evans on his own merits is open for debate.)
So Democrats, consider the possibilities. Suppose John Thune right now holds the same margin over any given Democrat by which Rep. Kristi Noem beat Corinna Robinson last year, 67% to 33%. If Kurt Evans can do half as well with the Independent label as Larry Pressler did in last year’s Senate race, he pulls Thune down below 60%. To win, a Democrat would only have to beat 46% instead of 50%. Eventual Democrat, Evans climbs a quarter of your electoral hill for you.
As I’m thinking about Kurt Evans’s usefulness to a Democrat challenging Thune, a Facebook friend points to this excerpt from Senator Claire McCaskill’s new memoir, in which she explains how she helped Todd Akin win the Missouri GOP primary in 2012 so she could beat him in the general election. The trick was casting Akin as the real conservative:
Using the guidance of my campaign staff and consultants, we came up with the idea for a “dog whistle” ad, a message that was pitched in such a way that it would be heard only by a certain group of people. I told my team we needed to put Akin’s uber-conservative bona fides in an ad—and then, using reverse psychology, tell voters not to vote for him. And we needed to run the hell out of that ad [Senator Claire McCaskill, “How I Helped Todd Akin Win—So I Could Beat Him Later,” Politico, 2015.08.11].
How’d that ad go over with Missouri’s GOP voters?
It started to work. Our telephones were ringing off the hook with people saying, “Just because she’s telling me not to vote for him, I’m voting for him. That’s the best ad for Akin I’ve ever seen!” A man wrote a letter to the editor of the Springfield News Leader: “I think it’s time for someone who may be too conservative. Thank you, Senator McCaskill, for running that ad. You have helped me determine that my vote needs to go to Akin.” The editorial page of the St. Louis Post-Dispatch advised those who were going to vote in the Republican primary to cast their ballot for Akin since he was “the most honest candidate. We suggest Mr. Akin because with him at least you’re sure of what you’re getting. He isn’t faking it when he endorses the worst of the GOP agenda. He actually believes it. What you see is what you get”[McCaskill, 2015.08.11].
Missouri’s 2012 Senate race differs significantly from South Dakota 2016. Evans would not face Thune in a primary. Our Democratic challenger would have to attack Evans directly in the general. Portraying Evans as the more rockily ribbed conservative might not drive moderates to check Dem when they would still have Thune’s comforting “R” on the ballot as a safety valve. And maybe just by laying this possibility out, I jinx it, alerting Evans himself to the danger of a nefarious liberal plot.
But eventual Democratic challenger, think about Evans. You already have a guy who wants to get on the ballot and cut Thune’s lead. Evans is an opportunity on which you can capitalize. How far can you stretch that opportunity?
Independent Kurt Evans is unhappy, and rightly so. The only declared candidate for the U.S. Senate seat up for grabs in 2016 has watched Senate Bill 69 morph from an effort to give the Secretary of State and citizens more time to review petitions for errors and fraud into an effort to protect incumbents from challengers by making it harder to place names on the ballot. Thanks to a conversation with Kurt Evans, I’ve discovered that SB 69’s restrictions on Independents, if enacted, will not withstand a court challenge.
Among the egregities of Senate Bill 69 is Section 7, which changes who can sign nominating petitions for Independent candidates. Currently, any registered voter may sign an Independent candidate’s petition, as long as that voter has not already signed another candidate’s petition for that same office. For example, in 2014, Republicans and Democrats could sign petitions to nominate one of the Independents, Larry Pressler or Gordon Howie, as long as those voters hadn’t already signed for Mike Rounds or Rick Weiland or another of the party candidates. Section 7 of SB 69 bans registered party voters from signing Independent petitions. Under this change, the only people from whom Larry Pressler and Gordon Howie could have sought signatures last year would have been Independents and other unaffiliated voters, not any of their old Republican friends, and not any of their mischief-making Democratic allies.
Section 7 thus requires Independent candidates to ask their signers’ party affiliation and turn registered party members away from their petitions. I’ve mentioned my philosophical and practical opposition to this unnecessary requirement. Kurt Evans offers a larger ballot access objection.
We restrict partisan candidates to partisan signers because those signers are nominating candidates for a primary election. Primary elections are party functions. Parties may open their primary elections to Independents (as South Dakota Democrats have done) and other non-party members if they wish, but the state can justify limiting party nominations to party members.
Independent candidates do not participate in primaries. They seek nomination to the general election ballot. Any registered voter may vote for an Independent candidate in the general election; logically, any registered voter, regardless of party affiliation, should be able to nominate an Independent candidate for the general election.
Candidate Evans puts the argument against SB 69 in his own philosophical terms:
SB 69 unjustly prevents South Dakotans who have every right to campaign and vote for an independent candidate in a general election from signing that candidate’s nominating petition. It arbitrarily limits the candidate’s pool of potential signers to a group of unaffiliated voters with no common political ideology, who may have less in common with the candidate than those registered with political parties [Kurt Evans, e-mail, 2015.03.11].
I spoke about this restriction on Independents this morning with ballot access expert Richard Winger, who testified against SB 69’s burdens on new political parties back in January. Winger confirms that this restriction is unusual. No state currently forbids partisan voters from nominating Independent candidates. Only two states have tried it. Louisiana imposed such an “Indies only for Indies” rule in 1918. During the 30 years that rule was in effect, no Independent candidate made the Louisiana ballot. Louisiana repealed its rule in 1948.
Arizona enacted a similar “Indies only for Indies” law on January 1, 1994. Green Party candidates, who did not enjoy official recognition in Arizona, took that law to court. In 1999, the U.S. District Court of Arizona looked at the Louisiana experience and concluded that prohibiting registered party members from participating in the nomination of non-party candidates is unconstitutional. The case, Campbell v. Hull, cites voluminous precedent saying we can’t limit Indies to gathering Indy signatures, including a South Dakota precedent from 1984:
Although Arizona’s restriction on major-party affiliated voters is unique in the last half-century, numerous courts have concluded that the Constitution does not permit states to require voters to change their party affiliation in order to nominate independents or minor party candidates. See Libertarian Party of Kentucky v. Ehrler, 776 F.Supp. 1200, 1206-08 (E.D.Ky.1991) (declaring unconstitutional and severing from a statute a requirement that minor party candidates submit a nominating petition signed by only members of the same political party as candidate); Workers World Party v. Vigil-Giron, 693 F.Supp. 989, 994-98 (D.N.M.1988) (striking as unconstitutional a state law requiring voter to change party affiliation in order to sign petition to form a new party); Libertarian Party of Nevada v. Swackhamer, 638 F.Supp. 565 (D.Nev. 1986) (declaring unconstitutional a state law requiring petition language that implied that a voter must change party affiliation to sign petition); Consumer Party v. Davis, 606 F.Supp. 1008, 1018-20 (E.D.Pa. 1985) (recognizing that it is exceedingly difficult to forego advantage of affiliation with Republicans and Democrats and granting a preliminary injunction against enforcement of state law that required party membership to sign a candidate nomination petition); Libertarian Party ofNebraska v. Beermann, 598 F.Supp. 57, 63 (D.Neb.1984) (declaring unconstitutional a requirement that persons desiring to sign a petition to form a new party affiliate with the new party and noting that “many voters have no desire to change basic political affiliations, but neither do they vote a straight political ticket in general elections”); Libertarian Party of South Dakota v. Kundert, 579 F.Supp. 735, 738-39 (D.S.D.1984) (declaring unconstitutional a state law limiting voters who may petition to place a minority candidate on the ballot to those voters who intend to join the party and noting that the law burdens the right to “vote effectively of persons who wish to consider the Party’s candidates but do not wish to join the Party”);N.C. Socialist Workers Party v. N.C. State Bd. Of Elections,538 F.Supp. 864 (E.D.N.C.1982) (preliminary injunction granted to prevent enforcement of law making an act of signing a petition to place party on ballot an act of disaffiliation with current party). Furthermore, while Arizona may enact laws that protect partisan primaries from outside intrusion by voters either unaffiliated or affiliated with a different party, Arizona may not constitutionally preclude the Democrats and Republicans from inviting independents to participate in their primary. Compare Nader v. Schaffer, 417 F.Supp. 837, 845 (D.Conn.1976) with Tashjian v. Republican Party of Conn., 479 U.S. 208, 215 n. 6, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). If Arizona may not prevent Republicans or Democrats from including independents in their primaries, there is no reason to believe that Arizona can prevent independents from seeking the support of registered Republicans and Democrats as long as those partisan voters have not already performed a nominating act [emphasis mine; Campbell v. Hull, 73 Fed Supp. 2nd 1081, 1999.04.05].
Senate Bill 69 thus stands in direct violation of case law established in Campbell v. Hull.
Kurt Evans may not win the 2016 Senate election. But if the conference committee considering SB 69 right now does not strip the restrictions on who can sign Independent petitions, and if the full House and Senate don’t have the sense to amend SB 69 back to its original purpose or just kill it, Kurt Evans could take the state to court, and he would win.