South Dakota’s Libertarian Party and Constitution party get their day in court on Tuesday, February 6, 2018 at the federal courthouse in Sioux Falls. That’s the day Judge Karen Schreier has ordered to hear the Lib/Cons’ argument that the state of South Dakota is placing unconstitutional burdens on new and minor political parties.
The Lib/Con lawsuit (U.S. District Court, District of South Dakota, Case No.4:15-cv-04111) originated in June 2015 as a challenge to 2015 Senate Bill 69, the infamous Incumbent Protection Plan. When we voters suspended that law by referral and rendered that lawsuit unripe, the plaintiffs targeted South Dakota’s end-of-March deadline for filing petitions to form new parties. After failing to place nominated Constitution Party candidates for U.S. Senate and South Dakota Legislature on the ballot in 2016 and confronting arguments from the state that our early party-petition deadline is necessary because of primary-election requirements, the plaintiffs amended their complaint to also challenge the seemingly arbitrary requirement that parties select candidates for Congress, Governor, and Legislature by primary but nominate candidates for Lieutenant Governor, Attorney General, Secretary of State, and four other statewide offices at convention.
Judge Schreier’s December 19 order denying cross motions for summary judgment summarizes the state’s continuing failure to get the Lib/Con lawsuit thrown out on standing, mootness, and ripeness. It also repeats Judge Schreier previous finding in 2016 that the March deadline for new party formation imposes a “severe burden” on parties that may seek to organize in an election year in response to the failures of existing parties and institutions:
Furthermore, defendants’ argument for reconsideration misses a major argument made by the plaintiffs—namely, new political parties should not be subject to the requirements of SDCL § 12-5-1 at all. As plaintiffs and case law point out, new political parties often gather their support after the two major political parties put forth their candidates and voters realize they may not agree with either candidate’s views. Docket 98 at 12; Docket 36 at 4; see also McLain v. Meier, 637 F.2d 1159, 1164 (8th Cir. 1980). Thus, voters often turn to third political parties later in the election cycle, after the primary election. But under SDCL § 12-5-1, no third party candidate running for an office not listed in SDCL § 12-5-21 will be found on the November general election ballot unless that candidate submits its 6,936 signatures by the last Tuesday in March and then participates in the South Dakota primary election in June. Thus, the court is not persuaded by defendants’ attempt to reconsider the severity of the law’s burdens [Judge Karen Schreier, Order Denying Cross Motions for Summary Judgment, Libertarians v. Krebs, Case No. 4:15-cv-04111, 2017.12.19, p. 20].
Judge Schreier’s order suggests the burden at trial in February will lie with the state to demonstrate a compelling interest in subjecting new parties to such an early petition deadline and requiring them to select certain candidates by primary. If the state fails to meet that burden, a favorable ruling for the Libertarian and Constitution parties will open the door for South Dakotans frustrated with the performance of the political powers that be to place alternative candidates on the November ballot.
Could this court case affect Mr. Evans’ reconsideration and subsequent campaigning with a vengance?
The primary was a progressive reform, and I’m in favor of it, although I’d like to see the primary occur in September in order to shorten the ridiculously long election period. The primary was a reform aimed at the two-party system as a needed protection against party hacks and insiders engaging in backroom dealing, payoffs and other mischief that used to occur in the two major political parties. Generally, the effect of such dealing was to keep the people from choosing their own nominees who might not have been as corrupt as the people the bosses and special interests would select.
That said, the primary was never intended to be a means to strangle other political parties who had few adherents and no history of the corruption and abuse of the kind that warranted a political primary system. Minor parties should be able to choose how they nominate candidates.
You know, Donald, a September primary would solve a lot of problems, wouldn’t it?
Grudz, it could be that not having to petition and campaign in the spring could affect Evans’s decision to withdraw from the race. It could affect a lot of people’s decisions to run for statewide office and Legislature.