SB 69: Prohibiting Party Members from Signing Indy Petitions Will Fail Court Challenge

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 of Nebraska 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.