Back in 2015, the new American Civil Liberties Union policy director for South Dakota, Libby Skarin, warned Senate State Affairs that legislation it was considering to move the petition circulation deadline even earlier raised constitutional problems. Senate State Affairs mostly ignored the ACLU’s warning and passed 2015 Senate Bill 69. This ill-advised legislation prompted a successful referral drive that led to South Dakota voters’ rejection of 2015 SB 69 in a landslide 71%–29% vote. It also prompted a lawsuit from the Libertarian and Constitution parties which, thanks to our successful referral and killing of 2015 SB 69, morphed into a challenge to the current petition deadlines for new political parties and the odd requirement that new parties chose some statewide candidates by primary instead of by convention nomination.
Yesterday, the Libertarians and Constitutionists won. Judge Lawrence Piersol ruled that South Dakota’s petition deadlines and primary requirements for alternative political parties are unconstitutional, on pretty much the same grounds Libby Skarin (and some blog friends) laid out three years ago. Judge Piersol specifically ruled that four state statutes violate the Libertarians’ and Constitutionists’ First and Fourteenth Amendment rights:
- SDCL 12-5-1: requiring new parties to organize by the last Tuesday in March by filing a petition with signatures from 2.5% of the turnout from the last election for Governor.
- SDCL 12-5-21: allowing nomination of candidates for lieutenant governor, attorney general, secretary of state, state auditor, state treasurer, commissioner of school and public lands, and public utilities commissioner at convention but not Legislative or other statewide candidates.
- SDCL 12-6-1: applying the March petition deadline to alternative-party candidates for Legislative and the big statewide offices.
- SDCL 12-6-4: requiring most candidates to file nominating petitions by the last Tuesday in March for the primary.
Judge Piersol said [p.9] that the March deadline severely burdens new parties’ ability to organize and place candidates on the ballot. He said circulating in winter in a sparsely populated state without the financial support of an established party is hard. He noted that South Dakota law denies new parties the chance to rally the support that usually blossoms for new parties after the major parties have named their candidates and platforms. That latter point is a big deal to Judge Piersol:
…courts have acknowledged the necessity of giving third party and independent candidates an opportunity to capitalize on the disaffected group of voters created only after the major parties platform and candidates are known [emphasis mine; Judge Lawrence Piersol, Memorandum Opinion and Order, Libertarian Party et al. v Krebs, #4:15-cv-04111, 2018.02.21, p.12].
Letting new parties organize and nominate candidates after the established parties primaries isn’t just a favor; it’s practically and constitutionally necessary.
Judge Piersol said [p.6] the burdens South Dakota imposes could be justified by some compelling state interest, such as [p.11] preventing “frivolous or fraudulent candidacies”, in keeping elections efficient, “in avoiding voter confusion caused by an overcrowded ballot”, and in avoiding the cost and hassle of run-off elections.
But neither Secretary of State Shantel Krebs nor anyone else trying to save the state’s bacon offered Judge Piersol any compelling reason for the state to make it so hard for alternative-party candidates to organize and place candidates on the ballot. The Secretary of State’s office muttered something about the need to timely print primary ballots, but Judge Piersol said that flimsy excuse for burdening third parties did explain why the state would force some candidates petition in March and stand for primary election while allowing other candidates to be named willy-nilly at convention, a distinction that the Plaintiffs contended [p.4] was unique among states. Judge Piersol said [pp.11–12] that Secretary Krebs’s introduction of emergency legislation this Session (HB 1286) that would have mooted the Lib/Con lawsuit appears to concede that the state has no such compelling reason for its selective March petition deadlines.
Citing precedent, Judge Piersol says [p.14], “Competition in ideas and governmental policies is at the core of our electoral process and of the FIrst Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.” The March deadline, rules Piersol [p.15] “does not grant new parties the time or the opportunity to organize” and “effectively freezes the two-party status quo….”
Judge Piersol does not order a solution, but the solution is obvious: get the House off its keester (they’ve been deferring HB 1286 since February 6), shoot House Bill 1286 to the Governor, and allow alternative parties to organize after the primary and nominate all of their candidates at convention.
Note that his ruling does not affect the major parties or independent candidates: Republicans and Democrats still have to submit their nominating petitions by March 27 this year, and indies have to submit by April 24. But we may see a whole passel of alternative-party candidates blooming onto our statewide and Legislative ballots come June and July. Welcome to the parties!
And just think, Legislature: if you’d listened to Libby Skarin and the ACLU in 2015, you wouldn’t be in this mess.
p.s.: The court gives new Libertarian chairman and apparent Legislative candidate Aaron Aylward a shout-out for enthusiasm: “With the exception of the young and optimistic Mr. Aylward, the other individual Plaintiffs testified to their experiences and their current involvement with clear exhaustion.”
Woo Hoo!! Lady Liberty has spoken & she won’t allow the long standing State Duopoly (More like Monopoly) to continue to pull the ladder up behind them! “No undo burden without a compelling interest,” I think has just become my new life’s matra! I don’t speak for the Party, but SD Libertarians are over-joyed right now & feeling more confident than ever! Enthusiasm is contagious, so much so that the Judge could feel it pouring out of our party chairman, Mr. Aaron Aylward. Well done sir! Way to represent!
This victory in the courts reveals many underlying facts, long known to the smaller parties. #1 The establishment will stop at nothing to protect the status quo & rarely represents the people’s interests. #2 The tight purse strings of the State, that has trouble funding education, addiction treatment, or even giving its own employees a raise (while they approve one for themselves) are EASILY opened for self-preservation & protectionism. #3 The “Good ol’ Boys” club knew they were wrong, but passed unconstitutional laws anyway. Made crystal clear when, after 2 YEARS notice a lawsuit challenge had been filed, seasoned administrators cannot “find” a single compelling State interest that the judge didn’t literally laugh at. Or better yet, its now forever immortalize into public records, the actual hypocrisy & nonsense regulations aimed at silencing differing opinions! Every citizen in the State is a winner with this case ruling. The voice of the people was heard, preserved & defended under the First Amendment & some of the chains binding a free democratic process were removed. There are no losers here. Democracy won, Freedom won, The People won! Now, it’s every voters civic responsibility to harness this energy & use it as motivation to become engaged, informed & involved in THEIR government! To All: fight the good fight worth fighting & I’ll see you at the polls in November!!!!
Let’s just say that Aaron Aylward is a competent voice for an alternative view of the status quo.
Let’s also say that Mark Mickelson is a dickhead who just cost the State $750k because he wouldn’t allow 1286 to come to a vote.
Yes, let’s also say that!
The legislature failed to heed the ACLU’s warning. It also failed to heed mine:
And so did Governor Daugaard:
One can only imagine the mess of lawsuits SB 69 would have spawned without your referral drive, Cory, and for that South Dakota is in your debt.
I’ll refrain from calling names, but what’s Mark’s deal? What calamity does he expect to befall our state without these arbitrary, burdensome restrictions on ballot access? Mark’s late father and my late father regarded each other as personal friends, and Mark actually had some political capital with me two months ago.
What exactly is his deal?
I’m not sure why Mickelson would drag his feet on HB 1286. He missed his opportunity to moot the suit and save the state money—on issue after issue, he seems determined to gamble on a court ruling against all odds.
HB 1286 is on today’s House calendar. It’s Crossover Day, so the bill has to move.
Kurt, the blog post you link reminds me that your explanations helped me realize just how bad SB 69 was and that that election-nerdy law really was worth referring. Thank you for helping me learn about the precedent surrounding SB 69!
Now if I could only convince you to reexamine the historical evidence that Christ rose from the dead… :-)
Seriously, Cory, it’s nice that we don’t have to disagree about everything.
By the way, if Bob “grudgenutz” Newland is making a genuine effort to remain anonymous, he’s still really bad at it (ha ha):
The legislature retaliated and passed a totally secretive, totally different bill under 1286 number. It had no public notice whatsoever. It will now be much HARDER to get our candidates on the ballot than before the lawsuit was filed. The news reports are wrong. They passed a totally different version of 1286 and we are extremely angry!