Brendan Johnson is working hard… for the Constitution and Libertarian parties! Acting as counsel for South Dakota’s two teeniest political parties, Johnson and ACLU attorneys M. Laughlin McDonald and Stephen L. Pevar yesterday filed a Motion for Reconsideration for the Constitution Party’s effort to run Kurt Evans for U.S. Senate and Wayne Schmidt for District 23 House.
Judge Karen Schreier tossed the Constitutionists’ bid Monday, the day before the Secretary of State’s deadline to certify names of all candidates for state and district office. Judge Schreier ruled on a technicality, saying the plaintiffs hadn’t addressed in their complaint the specific ballot-access statute that prevents the Evans and Schmidt nominations. The plaintiffs argue that they did address that statute and that Judge Schreier did, too, in her June order denying the state’s summary judgment motion:
Not only did Plaintiffs raise this issue in their Brief In Opposition to Defendants’ Motion for Summary Judgment, Doc. 33, but this Court addressed and discussed the issue in detail in its order denying Defendants’ motion for summary judgment. Doc. 43 at 13-6. As the Court concluded: “Although South Dakota has an important regulatory interest in ensuring its elections are fair and efficient, defendants have advanced no reason why primary elections are necessary for some candidates but not others. Because defendants have not given any reason for the disparate treatment, summary judgment is denied.” Id. at 15-6. Thus, the issue of disparate treatment of candidates was in fact raised by Plaintiffs in their pleadings and was addressed by this Court in its prior order. Plaintiffs submit that this prior discussion and ruling by the Court on the disparate treatment issue requires the Court to reconsider its Memorandum Opinion and Order Denying Plaintiffs’ Motion for Permanent Injunction (Doc. 68) [emphasis mine; Plaintiffs’ Brief in Support of Motion for Reconsideration, Libertarian Party of South Dakota et al. v. Shantel Krebs et al., Civ No. 15-4111-KES, filed 2016.08.17].
Johnson, McDonald, and Pevar also contend that the Federal Rules of Civil Procedure don’t require exhaustive complaints; rather, the rules encourage concise complaints “giving the adversary notice while leaving the rest to further documents.” The rules also say judges should grant due relief “even if the party has not demanded that relief in its pleadings.” The plaintiffs point to this summer’s big abortion ruling, Whole Woman’s Health v Hellerstedt, which itself cites Citizens United v. FEC:
Federal Rule of Civil Procedure 54(c) provides that a “final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings,” and this Court has held that if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is “proper,” Citizens United v. Federal Election Comm’n, 558 U. S. 310 . Pp. 10–15 [United States Supreme Court, opinion, Whole Woman’s Health et al. v. Hellerstedt et al., 2016.06.27].
The plaintiffs contend that the Constitution Party has a federal right to nominate Evans and Schmidt without a primary and that South Dakota law violates that right. If the court can be persuaded to reconsider the point, Evans and Schmidt could still practically make the ballot. Tuesday was the day for Secretary Krebs to certify candidate names, but county auditors don’t have to print ballots until September 21, two days before early voting begins.
This does not mean that Brendan Johnson is working hard. It means that the ACLU lawyers who are working hard aren’t licensed in SD. Brendan Johnson’s job is to sign his name as local counsel, but on the pleadings somebody typed his signature in for him.
Here’s another way of saying that: If South Dakota allows Shantel Krebs and Marty Jackley to be nominated without primaries, then under the 14th Amendment, it has to show a compelling state interest to justify denying me the same freedom.
As far as I can tell, the attorney general’s office hasn’t even tried to demonstrate any such compelling interest. The only way I could have seen the judge’s Monday ruling going against us was if she invented some technicality that we hadn’t had a chance to argue in court. And sure enough.
Our lawyers may not be happy about me publishing this, especially while the case is ongoing, but the eleventh-hour surprise in Monday’s ruling seems really unjust.
Thanks for an accurate, well-written post, Cory.
What right does a judge have to tell the American people who they can vote for or run for an elected position ??????????????????? …………..WHY ARE THEY AFRAID OF ANTHING BEYOND A TWO PARTY SYSTEM????????????
Donal, I might suggest who appoints whom might have something to do with that.
I have no problem with Kurt Evans being on the ballot but I think it will hurt Jay Williams more than John Thune.
Regardless of the outcome of the election, I think having another voice in the discussion would help them both in the long run.
Greg, I’d take my chances. I have faith in the Dem base not to mark Con under any circumstance, and I’ll wager that any Indies who would go Con instead of familiar Dem progressivism would be outnumbered by the conservative cranks who usually vote GOP while they wait for real radicals to come along to disband the federal government and open the door to local theocracy.
Over the last two decades, the Constitution Party has shifted dramatically away from dominionist theocracy and toward liberty:
I’m not looking to disband the federal government, but I’m definitely looking to bring our soldiers home from unnecessary wars and end the intelligence community’s unconstitutional warrentless seizures of our financial and internet data.
Kurt, you understand that shift, but do the folks waving the Con flag in SD get that shift?
If what you mean by “waving the Con flag” excludes me, then I’ll need you to clarify what you mean by it.
The folks other than you, yes.
There are about 500 Constitution Party members in South Dakota. I’d guess some probably understand the shift and some probably don’t.