Schreier Rebuffs State, Calls March Filing Deadline for New Parties “Severe Burden”

Last updated on 2016-08-18

Gary Johnson, Jill Stein, and Bernie Sanders voters, take note!

The lawsuit filed by the Libertarian and Constitution parties last summer against Referred Law 19/Senate Bill 69 is still bubbling in federal court, although it’s no longer a lawsuit against Referred Law 19. We voters fouled up their original complaint by placing Referred Law 19 on the ballot and preventing it from taking effect. The state argued and Judge Karen Schreier agreed that the original complaint was not ripe because there is no certainty that Referred Law 19 will take effect (and I maintain that this wonky pile of election law technicalities favoring incumbents and eroding voter rights has almost no chance of winning over voters).

One element of the dismissed challenge was the Libertarians and Constitution Partiers’ argument against RL 19’s change of the deadline for new political parties to officially organize by the first Tuesday in March. Facing rejection of their challenge to that proposed deadline, the plaintiffs decided to take a whack at the existing deadline of the last Tuesday in March (SDCL 12-5-1). Judge Schreier said have at it, and the Libertarians amended their complaint in January to contend that March 29 is about as unconstitutional as March 1. (Can we say that constitutionality is like pregnancy: a law is either constitutional or it isn’t, without degree?) The plaintiffs ask that the court set the new-party filing deadline at August 1.

The state—i.e., defendants Secretary of State Shantel Krebs and Attorney General Marty Jackley—moved for summary judgment, saying South Dakota’s laws are reasonable and nondiscriminatory. Yesterday, Judge Schreier said the state is wrong and allowed the lawsuit to proceed to full argument.

Judge Schreier notes that the Eighth Circuit (that’s includes us!) has some precedent that favors the plaintiffs:

The cases most analogous to the facts before this court are McClain I and McClain II. The plaintiffs in McClain I challenged a statute requiring new political parties to file a petition with 15,000 signatures by June 1. The Eighth Circuit concluded the restrictions were “unnecessarily oppressive” and “unconstitutional.” McClain I, 637 F.2d at 1163. The statute in McClain II required petitions to be filed with 7000 signatures by approximately mid-April, which was 55 days before the state’s June primary election. Although the Eighth Circuit upheld these restrictions, it found that the burden imposed by the law was of “some substance,” and the court subjected the statute to strict scrutiny. McLain II, 851 F.2d at 1049. Here, the time burden imposed on plaintiffs is greater than the time burden imposed in McLain II because new political parties need to submit their declarations by late March—70 days before South Dakota’s primary election day. This early deadline is particularly oppressive because, as the court noted in McLain I, a third party candidate’s viability is largely determined after the major political parties have chosen their candidates and platforms. People often look to third party candidates when they are dissatisfied with the major parties’ nominees. The March deadline forecloses a candidate’s ability to run for office before the major parties have selected their nominees. Additionally, the deadline of March 29 requires petition circulation to occur during the cold, winter months instead of the springtime as occurred under McLain I’s June 1 deadline. While the signature burden here of 2.5% [6,936] signatures is comparable to the signature burden in McLain II and is less than in McLain I, the court finds that the late March time burden coupled with the substantial signature requirement is particularly troublesome. The reasoning of McLain I and McClain II supports a conclusion that South Dakota’s ballot access laws place a severe burden on plaintiffs’ rights [emphasis mine; Judge Karen Schreier, Memorandum Opinion and Order Denying Defendants’ Motion for Summary Judgment, Libertarian Party of South Dakota et al v. Krebs et al (4:15-cv-04111-KES), 2016.06.09, pp. 10–11].

The state justifies this “severe” burden on new parties by contending that the Secretary of State needs time between the filing deadline and the beginning of early voting to prepare primary ballots. Judge Schreier boots that argument by pointing out that the state has not demonstrated “what interest South Dakota has in requiring new political parties to hold a primary election for their gubernatorial candidates. South Dakota allows parties to nominate candidates for president, lieutenant governor, attorney general, and other statewide offices at convention (SDCL 12-5-21), so why not governor? The plaintiffs, with the help of ballot access expert Richard Winger, contend that such disparate treatment of gubernatorial candidates is “irrational,” “discriminatory,” and “unreasonable,” and absent a good argument from the state, Judge Schreier is inclined to agree.

Libs v. Krebs thus moves forward. If they can secure a swift ruling from Judge Schreier, the Libertarians could yet gain official party status and place Gary Johnson on the ballot as an official Libertarian alternative to the Republican nominee.

This case should also be of keen interest to Bernie Sanders supporters. While out campaigning last night, I met a friend on Main Street who shares my love of Bernie Sanders. He is so dismayed by the Presidential nominees of the two major parties that he is organizing an effort to get Dr. Jill Stein of the Green Party on South Dakota’s Presidential ballot. Under current statute (SDCL 12-7-7) Stein supporters have to submit 2,774 signatures by August 2 to get the Green Party candidate on the ballot as an Independent. If the plaintiffs in Libs v. Krebs prevail, disaffected Sanders voters could go whole hog, collect 6,936 signatures, place Stein on the ballot as a Green Party candidate, and have official party status in place for the 2018 gubernatorial election. 6,936—that’s a bit more than a quarter of the folks who showed up to vote for Bernie in Tuesday’s disappointing South Dakota primary.