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Knobe: Senate Bill 69 Punishes Independents

Hey, I think Rick Knobe’s with us on referring both SB 177 (the youth minimum wage) and SB 69 (the mutated petition reform bill). Knobe recognizes that SB 69 punishes South Dakotans for choosing to be Independents:

The law on ballot access (SB 69) started off as a solution to problems with verifying candidate petition signatures and time frames for getting that job done. The legislature modified the bill, so the essence of it denies reasonable access to the ballot for anyone who has the audacity to be an Independent.

There are over 100,000 people who have chosen not to affiliate with either the Republicans or Democrats. The punishment for that choice is banishment from the ballot.

…At a time when the public is clamoring for new ideas and voices, outside of the two party [strait-]jacket, limiting ballot access to those voices with new ideas runs counter to the participation our country purports to believe [Rick Knobe, “Two Bad South Dakota Laws May Go to a Public Vote,” KSOO, 2015.04.07].

Knobe is right on the net impact of Senate Bill 69. Legislation that was meant to protect the integrity of the ballot from petition fraud has been perverted to punishment to keep Independent voters from participating in democracy. As Knobe says, that skullduggery requires “a firm response” from all voters… which response right now looks like signing and circulating our referendum petition to stop Senate Bill 69.


  1. Jim in DC 2015-04-07 13:56

    Going to be in RC for a week in early May. Not being registered in South Dakota, is there anything I can do in the circulation process? I know I can not gather signatures but can I tag along with a circulator and encourage folks to sign the petition?

  2. tara volesky 2015-04-07 14:06

    If was very hard to begin with getting on the ballot as an Independent. Just one more way to control and suppress the vote.

  3. Bill Fleming 2015-04-07 14:20

    Cory, some friends and I were discussing this law (while signing your petition) last weekend and a question came up that we couldn’t answer. Suppose you were a Republican politician like… oh, say, Don Frankenfeld, and because you were unhappy with how the partisan ballots were shaping up (you weren’t happy with either of the R’s running in the primary, or with any of the D’s either), you decided to run for office yourself, as an Independent.

    Here are the questions:

    1. In order to run as an Indy, under the current law, would Don have to change his party registration to Independent? Or could he still be an R and run Indy?

    2. If the latter, would he not be able to sign his own petition (under current law)?

    None of us seemed to know those answers, and I at least thought it would be more fun to ask the questions here publicly, possibly embarrass my friend Don, and get your group’s feedback, than it would be to just do my own homework and be quiet about it. :-)

    p.s. any rumors I may have started about Frankenfeld running for any office whatsoever are:

    1. Absolutely intentional on my part and…
    2. As far as I know, completely false (and I should be ashamed of myself but obviously am not).

  4. Bob Klein 2015-04-07 14:58

    Don is going to take on Kristi?

  5. Jeff Barth 2015-04-07 15:07

    A friend sent me these voter registration numbers.

    From 12/1/2014 through 4/6/2015

    Republicans: 240,695 – 242,163. Increase of 1,468.

    Democrats: 175,964 – 175,514. Decrease of 450.

    NPA/Independents: 102,847 – 105,784. Increase of 2,937.

  6. Bill Fleming 2015-04-07 15:49

    Bob Klein, nothing would make me happier than to see Don run against Kristi, but again, that is almost certainly NOT the case, at least as far as I know.

    My decades long relationship with Mr. Frankenfeld is such that even if he WERE actually running for something he would almost certainly never tell me about it, even if I saw his name on the ballot and asked him about it in person.

    Hell, even if he actually somehow got elected, he still wouldn’t tell me!

    I think he likes it when he can contribute to my already profound state of confusion and delusion.

    He’s funny that way. :-)

  7. caheidelberger Post author | 2015-04-07 15:55

    Thanks, Jim in DC! You’re right: you can’t handle the petitions, but there’s nothing wrong with keeping a circulator company, helping make the pitch, etc.

    Of course, we’ll always take your money! You could pay for a circulator’s gas money, copying and/or postage. You could help a circulator rent a booth at a flea market or fair to gather lots of signatures in one day and reach lots of possible volunteers (Hey, Ellee Spawn! Did you get the scratch to cover that Benson Flea Market booth yet?) You could even send me a check made out to “SD Voice” (for SB 177:youth minimum wage) and/or a check made out to “South Dakotans for Fair Elections” (SB 69: petition reform), and I could use the money to run more copies, buy more stamps, etc.

    Best of all, even if you’re no longer a South Dakota resident, you can call/e-mail/text all the friends and relatives you may still have in the state and ask them to sign and circulate… for democracy! For the good guys!

  8. caheidelberger Post author | 2015-04-07 15:57

    Rumor my foot: Republicans clearly recognize that Frankenfeld used Pressler to test the Indy waters in 2014 for his own run to clean house in 2016. Properly terrified of an Independent Frankenfeld juggernaut, Republican legislators used SB 69 to throw barricades in Frankenfeld’s way.

    Let me consult the law books on your interesting question about Indy registration and candidacy.

  9. caheidelberger Post author | 2015-04-07 16:07

    Bill, SB 69, Section 22, adds this definition to SDCL 21-1-3:

    “‘Independent candidate,’ any registered voter who is not registered as a member of a recognized political party and who is a candidate for office….”

    The addition of that definition suggests to me there is no such clear definition now, meaning that in 2014, Frankenfeld could have run as an Independent while remaining officially a Republican.

    SB 69’s new exclusive definition means that, in 2016, if SB 69 takes effect, Frankenfeld would have to drop the R before running I. The interesting bind you describe cannot arise under SB 69.

    But it is worth noting that SB 69 takes one more right away from citizens. If you are a Democrat or Republican but you want to run as an Independent, SB 69 forces you to give up your party affiliation.

  10. Curt 2015-04-07 16:07

    Mr Fleming – I assume your questions re: ‘current law’ assume SB 69 is in effect (which it is not, but absent filing of the referendum petition will be as of 7/1/15). Please clarify, because the answer is different depending.

  11. Kurt Evans 2015-04-07 16:53

    On March 11, I’d posted this comment here:
    >”Funny thought: Last I knew, a person could legally run an independent campaign while registered as a Democrat, Republican or other partisan. If that’s still the case, Republican legislators are trying to make the legal requirement for signing an independent candidate’s nominating petition more stringent than the requirement for actually being an independent candidate.”

    On March 12, I’d emailed Ernie Otten on the SB 69 conference committee asking him to read that post and my remarks in its comment section.

    On March 13, in the SB 69 conference committee meeting on the last day of the regular session, Mark Mickelson threw in a last-minute amendment depriving any South Dakotan who registers with a party affiliation of the freedom to mount an independent campaign.

    I don’t believe that was a coincidence, and it angers me. These guys are just so corrupt.

  12. Bill Fleming 2015-04-07 17:10

    Curt, my question assumes SB 69 is in effect in the next election cycle. (I consider that “current law” until such time as the necessary petitions are signed to put it on hold.)

    Cory, yes, if your read is correct (and it was my read too… but what the heck do I know?), none of us D’s or R’s could run as Indies unless we dropped our party affiliation. That strikes me as our all having lost a significant election right for what appears to me to be purely partisan (ruling party) reasons.

  13. Kurt Evans 2015-04-07 17:17

    I’ve posted most of this before, but it bears repeating.

    The number 69 seems appropriate for the bill under discussion, because it turns the concept of free elections upside-down.

    Since 1938, North Dakota has had more than 30 non-major-party candidates for the U.S. Senate. Iowa has had about 50, and Minnesota has had more than 60. Including Gordon Howie and Larry Pressler in 2014, South Dakota has had 8.

    When I ran for Congress in 1996, any citizen with any party affiliation could run an independent campaign and have that affiliation printed on the ballot, and nominating petitions weren’t due until August 6.

    An independent candidate had a small line printed below his or her name that said, “affiliated with the [Democratic/Republican/Green/Libertarian/Reform/no] party.” I was “affiliated with no party” on the ballot, but I’d actually voted in the early presidential primary in February before I re-registered with no party affiliation and began circulating my petitions. The other independent candidate was listed on the ballot as “affiliated with the Reform Party,” which wasn’t even a recognized party in South Dakota.

    I believe the general election ought to stand above restrictions based on party affiliation, as it did then. As an individual citizen, a Republican or Democrat who isn’t happy with either of the major-party nominees for an office has as much right to run against them as anyone else. From another perspective, your tax dollars pay for the primary elections. The fact that you may (or may not) end up on the general election ballot as an independent candidate shouldn’t deprive you of the freedom to participate in those primaries.

    On a related topic, because our primary elections are publicly funded, their nominating requirements shouldn’t be so restrictive that recognized (non-Republican) parties are unable to draw at least two candidates for most offices. On another related topic, a return to 1996 election laws would allow independent campaigns as a reasonable way for Democrats to qualify for the ballot when a candidate steps forward after the primary filing deadline.

    There’s simply no moral justification for Democrats, Libertarians or independents to be held to early filing deadlines for races in which they have no primaries.

    Pat Powers once wrote, “Democrats have abused the law for years by using placeholders so they can recruit past the deadline.”

    Giving citizens alternatives isn’t abuse. Denying them alternatives is abuse.

    It’s interesting that Republicans have dominated South Dakota politics for most of its history, but for the first 100-plus years, they mostly respected the right of South Dakota citizens to choose their leaders in free elections. The current class of Republican legislators is different. The smug arrogance with which they dismiss the concerns of seasoned political veterans like Richard Winger and Bernie Hunhoff indicates a disappointing lack of wisdom and maturity.

    Since 1996, our Republican state legislature has moved the filing deadline for independent candidates forward at least three times: first from August to two weeks after the primaries, then to the day of the primaries, and finally to the current date in April.

    When the legislature first moved the date from August to June, Ralph Nader sued and won, forcing the state to move the deadline back to August, but the ruling only applied to presidential candidates.

    When the legislature tried to move the date from June to April in 2009, Secretary of State Chris Nelson warned, “At some point, an independent’s going to challenge that. Their question to the court is going to be, what is the state’s compelling interest for compelling … an independent candidate to file so early?” Nelson added, “The state doesn’t need to know who independent candidates are until August, when we begin putting the ballot together.”

    The 2009 bill, which was cosponsored by Jason Gant, was defeated. In 2012, the same bill was reintroduced. Secretary of State Jason Gant testified in support, and it passed. Shantel Krebs voted in favor of the bill.

    There are clear legal precedents declaring independent and minor-party early petition deadlines invalid. The only interest in an earlier date for independent candidates is not a state interest but a partisan one.

  14. Douglas Wiken 2015-04-07 17:43

    Independents should register as Democrats and run. A few thousand independents registering as Democrats would send the right message.

  15. grudznick 2015-04-07 17:59

    A few thousand Democrats registering as Independents might send a message too. Oh, wait, that’s happening every year, init?

  16. Bill Fleming 2015-04-07 18:05

    Actually, Wiken’s idea is quite brilliant. Good one, Doug. If the movement to refer SB 69 is unsuccessful, Cory, there’s your next campaign. Recruit all the Indies!

  17. caheidelberger Post author | 2015-04-07 18:08

    Kurt, thank you for reminding us of that timeline. I don’t think that’s a coincidence, either. I suspect they saw the opportunity to chip away one more right and tucked it into this bill. It is part of an under-considered aspect of this bill, the assault on the rights of party members to run as Independents and qualify directly for the general election ballot.

    We can go back and find a number of examples of party candidates whose primary petitions have been rejected, gotten lost, or just didn’t get done, by whatever snafu, and who thus make up for that failing by petitioning a second time, as an Independent. The Legislature reduced that second-chance period from 10–11 weeks to 4–5 weeks in 2012 (see HB 1182, changing Indy filing deadline from Primary Day in June to last Tuesday of April). Now the Legislature says you have to leave your party to do it.

    Chip. Chip. Chip.

  18. Les 2015-04-07 18:26

    “”Cory, there’s your next campaign. Recruit all the Indies!”” couldn’t recruit the Dems for a GOP primary last year, Bill. Many of these Indies were Dems. You think they might be any less stubborn after feeling forced to leave their party?

  19. Bill Fleming 2015-04-07 18:31

    Les, yes.

  20. bearcreekbat 2015-04-07 18:44

    I like Kurt’s point: “it bears repeating.” Thanks Kurt!


  21. Kurt Evans 2015-04-07 20:20

    “Bearcreekbat” wrote:
    >”I like Kurt’s point: ‘it bears repeating.’ Thanks Kurt!”

    You’re more than welcome, BCB.

    No matter how long the comment is or how many times it’s been posted, if the blog owner mostly agrees, it isn’t spam. :)

  22. Rorschach 2015-04-08 10:20

    I believe that the Libertarian Party, having failed to field a candidate for governor last year, has lost its status as a recognized party in SD. Is the Libertarian Party reorganizing, Kurt?

  23. Kurt Evans 2015-04-08 12:39

    “Rorschach” asks:
    >”Is the Libertarian Party reorganizing, Kurt?”

    I believe the state party’s executive committee is preparing to force out Texas Republican Lee Stranahan, who misrepresented his residency status in order to be elected as the East River at-large committee member in August.

    I believe they’re also trying to recruit a new party chair to replace Emmett Reistroffer, who’s now residing and registered to vote in Colorado.

    There may be more restructuring of the executive committee in the works, or maybe they’ll all just forget about it. If I were a betting man, past experience would probably compel me to put my money on the latter.

  24. Lynn 2015-04-08 12:47


    Is Chad Haber and Ryan Gaddy helping build the Libertarian Party? Efforts with getting Petitions signed for SB-69?

  25. Kurt Evans 2015-04-08 12:53

    Lynn asks:
    >”Is Chad Haber and Ryan Gaddy helping build the Libertarian Party? Efforts with getting Petitions signed for SB-69?”

    I’m not sure about Ryan, but I believe Haber is currently helping both causes by staying as far away from them as possible.

  26. Bob Newland 2015-04-08 15:56

    Gaddy is circulating both referral petitions. The SDLP is making movement to change its management personnel. Haber is not letting me know what he’s doing.

  27. Lynn 2015-04-08 16:08


    That’s great!

  28. mike from iowa 2015-04-08 16:55

    Bob Newland-send Haber a thank you note. What you don’t know won’t make you an unindicted co-conspirator.

  29. grudznick 2015-04-08 17:46

    Bob, I’ll send Mr. Haber a note for you. I’ll ask him to say hi to his pretty young doctor wife also.

  30. caheidelberger Post author | 2015-04-08 20:30

    Newland! Gaddy’s circulating the SB 69 and SB 177 referendum petitions? What a guy!

  31. Bob Newland 2015-04-08 22:48

    Grudzeming: Thanks.

  32. Rorschach 2015-04-08 23:17

    I believe it will take just under 7,000 valid signatures to get the Libertarian Party (or any new party) recognized, and one has until March 2016 to do it to put candidates on the 2016 ballot. Petition signers need not be registered Libertarians, just people interested in democracy and enhanced competition. Maybe those dedicated Libertarians circulating two petitions already should circulate a third one.

  33. Kim Wright 2015-04-09 00:28

    While party-identified late candidates might run as independents, it seems unlikely that independent candidates would join either party to simplify getting on the ballot; but perhaps that could happen. Independents are NOT a party and therefore, don’t have primary elections–how can SB 69 constitutionally require “unaffiliated-identified” signers for petitions of a non-party?? the Republican majority has made every effort to limit the democratic process in South Dakota. Keep circulating petitions and educating voters!!!

  34. caheidelberger Post author | 2015-04-09 06:29

    Per SDCL 12-5-1, new party formation currently requires 6,936 signatures, 2.5% of the total gubernatorial vote in 2014. SB 69 does not change this signature threshold; it does move the deadline for submitting those signatures from the last Tuesday in March to the first Tuesday in March… both of which dates can be argued to be unconstitutionally early, as they deprive parties of the opportunity to form in response to bad legislative action in time for that year’s election, as the GOP was able in 1854.

  35. caheidelberger Post author | 2015-04-09 06:30

    Right on, Kim! Independents are by definition not a party; the law should not treat them like a party.

  36. tara volesky 2015-04-09 11:08

    It’s tough being an Independent in SD because both the Democrat and Republican Establishment would never support an Independent. They put their party before the people. Look what’s happening right now in SD, hundreds of people are rising up and calling for a federal investigation into the cover-ups of Marty Jackley. The news media is getting hundreds of calls because of the black-out with the Shirley Schwab and Mark Black press conference. The sleeping giant is starting to take these issues into their own hands, and they are not going to back down. Playing safe doesn’t get you anywhere, why do you think so many loyals are leaving?

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