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Judge Piersol Signals Legislature: Pass HB 1286 and Lib/Con Lawsuit Goes Away

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.


  1. John Kennedy Claussen, Sr. 2018-02-07

    So if a judge’s decision can make a law moot – which it obviously can – then what did our legislature repeal, when a judge had already placed an injunction against IM22?

    I realize the analogy between IM22 and the courts and HB1286 and a court is not perfect given the complexity of federal supremacy issues. However, it has always mystified me how a legislature could repeal a law that was in the custody of the courts – and given initial rulings – had no legal enforceability (because IM22 had been stayed) at the time and was then subjected to nothing more than an empty repeal attempt at best or a moot issue for the legislature shall we say in time and place. Only when the State Supreme Court had ruled on IM22, with parts of it surviving potentially, would it be a law that the legislature could once again address, right? That is if you believe in the doctrine of separation of powers and how it accentuates a balance of power, where no branch is merely to be allowed to be a tool of an other branch.

  2. Cory Allen Heidelberger Post author | 2018-02-08

    That’s two steps too complicated for me, JKC. I think the Legislature would still win such a challenge: even if a judge stays or overturns a law, the statute is still technically in the books. That’s how AL Novstrup is getting his SB 110 right now, amending our forced-anti-abortion-counseling law, even though the law is currently enjoined as it goes through the courts. I’d say that if someone did pick up your challenge and run with it, the Legislature could say, “Fine, we didn’t really repeal the law, since the court had stayed it and it wasn’t in effect. We just erased the text of the law from the books.”

    Or is your argument that when a law is stayed, all parties are required to leave it untouched, so the courts don’t have to evaluate a moving target?

    If Judge Piersol rules for the Lib/Con plaintiffs, the state will have to rewrite its ballot access laws.

  3. John Kennedy Claussen, Sr. 2018-02-08

    Well, just for the sake of debate, Judge Barnett claimed in December of 2016 that there could be no “sever- ability” of the IM. So given that, how can you separate the “text” from that reality? (But then again, I am not a lawyer. A course some will say, that is is obvious, but to those, I ask for constructive criticism.)

    Your second question is actually a point I had not thought of, which has merit, which would lend greater credence to the argument that the IM was truly in the custody of the courts; but my overall argument is that the doctrine of separation powers asserts a balance of power between the branches that does not allow one branch to legally place an other branch into a subserviently relationship to affect a legal outcome. Especially, when the proactive or attempting dominant branch is a special class or sole benefiter of the attempted legal remedy or eventual outcome. Because such a judicial and legal maneuvering is a vagrant abuse of powers by a given branch of govern.

    Now, it is true that any legislature in theory could repeal a new IM without the courts involvement at any time, but the courts were needed in time and place to guarantee business as usual, given IM22’s presence, to the sole benefit of the Legislature, and the Legislature, or Legislators, were an unique plaintiff, because no other plaintiff would have the powers or means to affect such an unique and manipulative outcome. So what the Legislature, or Legislators, did with IM22 is guarantee “business as usual,” where the Legislature, or Legislators, alone were the sole benefiters and abused the separation of powers doctrine, and thus the balance of powers between the branches to the Legislature’s sole benefit.

    Now, one could argue that what the Legislature did to IM22 also benefited lobbyists too, and any citizen could conceivably be a lobbyist, but to do that would accentuate how a unique class, even if greater than the Legislature, was meant to benefit the legislative process and thus the potential powers of the legislative branch by using the judicial branch to affect an outcome to the Legislature’s unique and sole benefit, which in turn, would or does make a further mockery of our republican form of government….. Small “r'” I might add….

  4. Cory Allen Heidelberger Post author | 2018-02-10

    There was a lot wrong with Barnett’s ruling. His rejection of severability was one of his glaring errors. The Supreme Court would likely have reversed that part of his argument and restored that well-established component of law.

    Despite your reasonable point on separation of powers, I’m still inclined to believe the Legislature has the power to act on matters before the court. If the state is doing something wrong, the Legislature should have to wait for a court order to fix it (as in the case here with oppressive/unconstitutional ballot access laws). Likewise at the federal level: while one judge last month ruled that the Executive Branch can’t end DACA for those who have it while litigation continues, Congress can certainly revise the law. The Executive and Legislative branches certainly can’t do some thing the court has explicitly told them not to, but they can still act within the policy realm on which litigation touches.

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