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Draft Text of Open-Primary Amendment: Unlike V, Party Labels Not Affected

Joe Kirby of Open Primaries South Dakota got hold of me yesterday after my blog post on his group’s new open-primary amendment and shared the draft amendment his group has submitted to the Legislative Research Council:

That Article VII of the Constitution of South Dakota be amended by adding thereto NEW SECTION to read as follows:

§ 4. Open Primaries. An open primary election shall be held prior to the general election to nominate candidates for all members of the legislature, members of either house of Congress and the office of Governor. The primary election shall be open to all registered voters. A registered voter may vote in the primary election for any candidate. The two candidates who receive the most votes in the open primary are the nominees for each office. If more than one candidate is to be elected to an office, the number of nominees shall be twice the number to be elected [Open Primaries South Dakota, draft amendment text, submitted to LRC 2017.04.27].

As we can see, this new amendment is not Amendment V, the open non-partisan primary proposal that failed to pass muster with voters in 2016. Kirby tells me his coalition, which includes many figures involved in the V campaign, are going for transparency, both in sharing the text with the press and in the mechanics of the amendment itself. Opponents of Amendment V portrayed its removal of party labels from the ballot as an attempt to hide information from the public. That portrayal was wrong, but Kirby and friends decided to drop that less popular element of V and focus on ensuring that every voter can participate in the primary.

Like Amendment C, this open primary amendment does require that all candidates for the specified offices face each other on a single primary ballot. Independent candidates would no longer be able to petition their way directly to the general election ballot. Each recognized political party would no longer be guaranteed a place on the general election ballot. Independents, Libertarians, Constitutionists, Democrats, and Republicans would all have to have their nominating petitions in by the same date (one would assume last Tuesday in March, no longer last Tuesday in April for Independents) and take their best shot at placing second on the first Tuesday in June.

Kirby says he has talked to at least one Republican who says he opposed V but can get behind this new amendment to open the primaries now that it doesn’t strip party labels from the ballot. Kirby looks forward to talking to more voters and recruiting voters and petition circulators at informational meetings around the state, one of which is scheduled for Monday, May 15, at noon at the Rapid City Public Library.

If the LRC takes its full 15 days to respond to Kirby’s group (hey! 15 days from April 27 is tomorrow, May 12!) and if the Attorney General then takes his fullest sweet time reviewing the amendment and writing his explanation, the open-primary amendment petition could be available for circulation on July 11.


  1. grudznick 2017-05-11 19:30

    grudznick likes jungle primaries. But vote NO on everything else.

  2. Cully 2017-05-11 22:39

    Soo…Since Republicans can find more/better candidates, and voters handily default to R, what’s stopping SDGOP from pushing Dems off the ballot entirely?

  3. OldSarg 2017-05-12 05:15

    I’m not a big party fan. I distrust them both but it would appear to me an “Open Primary” would be a violation of the First Amendment. The First Amendment reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In there Boy Scouts vs Dale the Supreme Court supported Freedom of Association by declaring “Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group’s internal affairs by forcing it to accept a member it does not desire.” An Open Primary is no different. Whether your are a dem or rep they have the right to choose who they associate with, vote with and organize with. That is the whole point of a Primary, so a “private party” can choose who “they” wish to select to represent them in the election. With an open primary you strip the people of that right of association.

    Be careful. What many perceive as a more democratic may in fact be a diminishing of your rights. . .

  4. Clyde 2017-05-12 08:24

    I voted for V since it would force candidates to run on their merits and voters to be more informed. I will vote against this one since I see it as limiting options and greatly disadvantaging independents at a time when a larger share of the public wants more options. Looks to me as if it will help to guarantee that the ruling party in South Dakota will stay that way.

  5. Cory Allen Heidelberger Post author | 2017-05-12 11:09

    Cully, what stops the GOP from pushing Democrats off the November ballot under an open primary? Butt-kicking Democrats like you getting in the primary and winning!

    Clyde, this amendment does not limit choices any more than V did. Voters will still have the same number of options on their ballot. What text makes you think this draft amendment would limit options?

    OldSarg, this amendment strips no right of association. If a party wants to hold its own convention and nominate a single candidate to put on the ballot, it can do that. Other states do that. It might even be a wise choice for a party facing a divided opposing party. The only thing that changes is that the party doesn’t get the state to conduct its election for them on taxpayers’ dimes.

  6. Don Coyote 2017-05-12 12:07

    @cah: “If a party wants to hold its own convention and nominate a single candidate to put on the ballot, it can do that. Other states do that.”

    What other states do is entirely up to their laws and is irrelevant in South Dakota. It appears according to SD law that the Governors office, state legislature seats, Congressional seats and President have to be nominated by the primary process which would rule out convention nominations.

    “12-5-21. Nomination of state candidates not voted on at primary–Presidential electors and national committee members. The state convention shall nominate candidates for lieutenant governor, attorney general, secretary of state, state auditor, state treasurer, commissioner of school and public lands, and public utilities commissioner and in the years when a President of the United States is to be elected, presidential electors and national committeeman and national committeewoman of the party.”

    I voted against V and I’ll vote against this abomination.

  7. Cory Allen Heidelberger Post author | 2017-05-12 12:45

    Coyote, when told that a law or amendment causes X, it is perfectly relevant to look at other jurisdictions with similar laws or amendments and point out that X hasn’t happened.

    This draft amendment would override any statute. The statute you cite assumes a primary selection process for candidates from each party. That process disappears under this draft amendment, thus freeing parties to conduct their internal affairs as they see fit. Heck, even in the current system, there is nothing stopping the SDGOP from deciding that Jackley is a safer bet than Noem, spreading that word, and making sure the base is mobilized to pick Jackley. They might get in trouble with their party by-laws, but there would likely be nothing for Jackley to prosecute (hee hee hee). Implement this amendment, and political parties could certainly conduct March caucuses to hear from potential candidates and, if they choose, endorse the best one for the primary. Perfectly legal and sensible.

    Now, stop being contrary just to be contrary and explain what makes this draft an “abomination.”

  8. Don Coyote 2017-05-12 13:09

    @cah: Ok, let’s look at California law which this amendment mirrors. The California constitution does not allow for political parties to nominate candidates for voter nominated offices.

    “Under the California constitution, political parties are not entitled to formally nominate candidates for voter-nominated offices at the primary election. A candidate nominated for a voter-nominated office at the primary election is the nominee of the people and not the official nominee of any party at the following general election.”

    Let’s look at Washington State which uses the jungle primary. While political parties can nominate candidates they can not be distinguished as such on the ballot. From a Washington SoS FAQ:

    “Can the political parties demand that their nominees be distinguished on the ballot?
    No. The law does not allow nominations or endorsements by interest groups, political action committees, political parties, labor unions, editorial boards, or other private organizations to be printed on the ballot.”

    In both states the value of political parties nominating their own candidates is either forbidden or diminished. In both cases the jungle primary only serves to make democratic elections less transparent by denying voters the knowledge of who they are voting for.

  9. Cory Allen Heidelberger Post author | 2017-05-12 16:14

    What?! California?! Washington?! “What other states do is entirely up to their laws and is irrelevant in South Dakota” waaaaa

    Oh, o.k.

    Actually, your examples here are irrelevant, because they do not describe the kind of action that I said parties could take under the language proposed for South Dakota. I didn’t say, “The state should indicate on the primary ballot which, if any, candidates have been formally nominated or endorsed by their respective parties.” I said a party could caucus before the primary and choose a preferred candidate. Endorsed candidates could advertise that endorsement. Parties could help their preferred candidates. Nothing in the language of the draft amendment prevents those actions; nothing I can think of that would remain in statute under this amendment would prevent those actions. Constitutionally, we couldn’t stop other candidates from circulating petitions and challenging their parties’ endorsee, but constitutionally, we also couldn’t stop the parties and their members and endorsed candidates from saying, “Those other candidates are bozos—Endorsed Candidate X is the real deal, and you should vote for her in the primary!”

    This amendment denies no one any knowledge. Every bit of information the voters get on their ballot now will still be on the ballot post-amendment. As a matter of fact, every ballot would actually have more information: right now at primary time, I only get one ballot, listing only one party’s candidates. It lists no independents. Post-amendment, my ballot shows me every person running, from every party and from the independents, and gives me the chance to pick any one of them. More information, more choice, the exact opposite of the impacts you wrongly ascribe to the draft amendment.

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