Judge Lawrence Piersol heard opening arguments and testimony in the Libertarian/Constitutionist lawsuit against South Dakota’s onerous ballot access laws yesterday. The judge also confirmed that the Legislature can save the state from losing this lawsuit by passing House Bill 1286:
Near the end of the first day of the trial, Judge Piersol told lawyers for both sides to consider a stipulation that would drop the lawsuit if lawmakers pass the bill in its current form and Gov. Dennis Daugaard signs it.
“That would serve as a signal to the legislature,” Piersol said [John Hult, “Krebs: Law Change Could Ease Burden for Third Parties,” that Sioux Falls paper, 2018.02.06].
ACLU lawyer Stephen Pevar said he’s “delighted” that Secretary of State Shantel Krebs has accepted his plaintiffs’ complaints as worthy of an immediate Legislative fix. But he maintains that the state has gotten off the hook too many times:
The bill doesn’t render the judge’s ruling unnecessary, however, Pevar argued. During opening statements, he told Judge Piersol that state lawmakers have moved the bar for third parties several times over the past two decades, and that they’re likely to do so again unless they’re issued judicial notice.
Pevar represented the Libertarian Party in a lawsuit in the 1980s, but the case was dropped when the state made concessions.
“We need a decision this time,” Pevar said [Hult, 2018.02.06].
House Republicans could make the judge’s decision necessary: HB 1286 drew no opposition testimony in House State Affairs Monday but passed to the House floor on only an 8–4 vote. Speaker G. Mark Mickelson veiled his desire to kill third parties by complaining that it’s not fair to let alternative parties get on the ballot far more easily than independent candidates. He suggested “we are reacting out of fear of some litigation” and setting the bar too low for small parties to get on the ballot. He pulled Reps. Heinemann, Rozum, and Latterell along with him in opposition, apparently blind to the fact that if they don’t support the changes Secretary Krebs has proposed in HB 1286, Judge Piersol will likely order them to make those changes and pay the plaintiffs’ lawyers for the trouble they’ve had to go to to get South Dakota to treat alternative parties fairly and constitutionally.
The House deferred action on HB 1286 yesterday; it’s on the calendar again today.