In June 2016, U.S. District Court Judge Karen Schreier allowed a lawsuit by South Dakota’s Libertarian and Constitution parties to proceed, saying that late-March petition deadline those parties are challenging is “particularly oppressive” to third-party candidates. Today, attorneys for the plaintiff filed a motion for summary judgment, saying the state has refuted none of the material facts supporting the plaintiffs’ claim that late-March petition deadlines, along with our curious division of statewide candidates into primary and convention nominees, violate the Constitution.
The plaintiffs filed the following documents in federal court today:
- Motion for summary judgment
- Brief in support of motion
- Statement of undisputed material facts
- Exhibit 1: South Dakota Secretary of State 2016 ballot access pamphlet
- Ex. 2: SDSOS 2016 election calendar
- Ex. 3: Deposition of SOS Shantel Krebs, 2017.05.03
- Ex. 4: Deposition of Deputy SOS Kea Warne, 2017.05.03
One key argument in the plaintiff’s brief is that “the best chance of getting people to sign a petition or donate funds to support a new political party is in the months after the major parties have chosen their candidates” [p. 15]. The brief cites precedent for that contention in court rulings that have struck down similar early filing deadlines.
The plaintiffs argue further that South Dakota cannot require any political party, new or established, to select its candidates via primary:
In New York State Board of Elections v. Lopez Torres, 552 U.S. 196, 202 (2008), the Court recognized that “[a] political party has a First Amendment right . . . to choose a candidate selection process that will in its view produce the nominee who best represents its political platform.” Other decisions similarly support the First Amendment right of political parties to regulate their own affairs. In Eu v. San Francisco County Democratic Committee, 489 U.S. 214 (1989), the Court held unanimously that a state cannot tell political parties how to structure themselves, where to hold their state conventions, or order them to rotate their party chairs every two years because such laws “burden the First Amendment rights of political parties and their members without serving a compelling state interest.” Id. at 233. See also Cousins v. Wigoda, 419 U.S. 477, 491 (1975) (holding that states generally lack the authority to instruct political parties on how to resolve intra-party disputes regarding the seating of delegates); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 126 (1981) (holding that a state generally lacks the authority to require political parties to select candidates by a particular primary process created by the state) [Libs v. Krebs, brief, 2017.07.27, p. 16].
Woven through the plaintiffs’ brief are their deposition of Secretary Krebs, who was doggedly unresponsive during her May 3 encounter with plaintiffs’ attorney Stephen Pevar of the ACLU. When she could be coaxed away from her repetitious assertions that she only does what state law tells her to do, she admitted that she has never looked into how South Dakota’s ballot access laws compare to those of other states and can posit no compelling interest the state may have in imposing greater burdens than other states on new political parties’ ballot access.
Secretary Krebs’s weak deposition responses apparently characterize the state’s responses in court:
…in Defendants’ previous briefs, Defendants sought to justify their unusually high signature requirement by listing the State’s general interests in regulating the ballot. What they neglected to do, however, is explain how those general interests “actually require” such a high signature requirement for South Dakota. All states have those same interests, but South Dakota has responded by enacting an unusually draconian restriction. Unless Defendants can explain what is so different about South Dakota that only such drastic means will suffice, the Court must conclude that Defendants have failed to satisfy their burden of proof [plaintiffs’ brief, p. 20].
One remedy the plaintiffs seek to the burdensome early deadline is to allow parties to nominate all of their candidates, from Congress and Governor on down to Legislature, at their conventions instead of through primaries. While reading back arguments made by Krebs herself and her fellow defendants, Pevar got Krebs to acknowledge that letting parties skip primaries and nominate all candidates at convention could increase participation:
SOS Krebs says we have to have a late-March deadline for nominating petitions from political party candidates because she has to have time to print their names on the early June primary ballot. But SOS Krebs herself can’t enunciate a compelling reason to require a seemingly arbitrary class of candidates participate in the primary instead of seeking their nominations from their parties at the traditional summer conventions.