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!