Lori Stacey’s right: the House messed up House Bill 1286 yesterday. What started as Secretary of State Shantel Krebs’s emergency bill to moot the ballot access lawsuit that the state just lost got morphed into something that does not fully respond to the constitutional concerns Stacey’s Constitution Party and her Libertarian friends successfully raised in their lawsuit.
Rep. Hawley kept Section 1, which defines “alternative party” as any political party making up less than 2.5% of the total number of registered voters. His amendment also kept the section allowing new parties to form after the primary by submitting and organizing petition with 1% of the last gubernatorial vote by July 1. But Hawley scratched everything else and made the following changes:
Nominating Petition Signature Requirements: Instead of allowing alternative-party candidates to qualify for the ballot by collecting signatures equaling one percent of the vote received by their best statewide candidate in the previous election, Section 2 now ties the alternative party signature threshold to only their gubernatorial candidate’s vote tally or, absent such a candidate in the most recent election, one percent of the total votes in the previous election, a much higher and more burdensome standard.
As a consolation prize, HB 1286 allows candidates of any party to choose either signature option, and candidates choosing the higher “1% of all voters” option are allowed to collect signatures from any voter. Nominating petitions must be in by July 1.
In counties with vote centers (where we can’t do the math to figure out the fraction of the last gubernatorial vote in each district), candidates choosing to collect signatures from everyone have to get twice as many signatures as other candidates.
***Update 16:37 CDT: I originally read that provision as a gratuitous swipe at independents, perhaps motivated by Hawley owliness at an independent running for his District 7 seat. But then ballot access expert Richard Winger directed my attention (see comments below) to HB 1286 Section 11, which moves the petition deadline for independent candidates from the last Tuesday of April to July 1. Independents just got two-plus months more to circulate petitions! If folks are disgusted by the outcome of the primary, they now can choose to form a new party, sign on with an alternative party, or petition to run independent against the meathead nominees of the major parties. That’s a major improvement in our ballot access laws.***
Troublingly for those looking for compliance with Judge Lawrence Piersol’s ruling, the Hawley amendment abandons the reform that would have allowed new and alternative parties to nominate all of their statewide and Legislative candidates at convention. Section 6 still spares new and alternative parties from the primary: if two candidates of the same new/alternative party file for the same office, the party central committee must meet and select a nominee by July 15. Method of choice is not specified, so standard nomination votes, trivia contests, arm-wrestling, and other feats of strength are allowed.
The original HB 1286 allowed new and alternative parties to nominate all candidates by the second Tuesday in August. The Hawley amendment takes away five to six weeks, requiring all candidates to submit petitions by July 1. That’s still better than the status quo, but it leaves in place the split system in which some candidates must petition to get on the ballot while others (those running for the statewide offices identified in SDCL 12-5-21) get on the ballot by convention nomination. Judge Piersol ruled that split system violates the Equal Protection Clause.
During floor “debate,” Rep. Hawley turned explanation of his amendment over to Rep. Steven Haugaard, who made only general statements about the nature of HB 1286 and gave no details of why he needed to change the Secretary’s proposal into this new, inferior form. He mentioned something about “keep[ing] the bar high enough so that individuals can’t just clutter the ballot,” although that doesn’t explain the need to double the signature counts for independents or the justification for ignoring key portions of Judge Piersol’s ruling.
A subdued and distracted House passed HB 1286 without further discussion or opposition on a 58–0 vote.
We must now hope the Senate can take the time to talk to the Secretary of State, read Judge Piersol’s ruling, and repair the damage of the Hawley amendment to make our ballot access laws constitutional.
p.s. on Style and Form: Section 6 contains a typo. Page 5 Line 16 reads “If two or more candidates of the same new political party of a political party that qualifies….” That of should be or.
I feel bad for Secretary Krebs, who’s obviously devoted considerable time and effort to this matter, but who bears the brunt of the consequences when uninformed meddlers like Mark Mickelson, Spencer Hawley and Steven Haugaard jump in to “correct” her work.
Once again, the alternative signature option could theoretically force a minor party to accept a “nominee” who lacks the support of even one other actual member of that party. This flagrantly violates the constitutional right to freedom of association.
Cory writes:
Note that the major parties can still replace withdrawn candidates until the second Tuesday in August. What compelling interest could the state possibly have in denying minor-party and independent candidates the same deadline? It’s too bad the legislators who impose these arbitrary, unconstitutional ballot-access restrictions don’t have to defend them on the witness stand.
But I think it gets worse: Doesn’t Section 11 now require all statewide candidates nominated by convention to file nominating petitions? And since Section 10 only makes the 250-signature option available to candidates for U.S. Senate, U.S. House or governor (and Section 8 only makes it available to statewide primary candidates), doesn’t that mean other statewide candidates would each need thousands of signatures? I’d seriously like to hear your read on this, Cory.
(By the way, your note about style and form is just the tip of the iceberg. This bill is filled with ambiguous, poorly-written language. It’s as if they left it until the last possible day, hastily cobbled it together, and then rammed it through with no real discussion or debate.)
In any case, at the end of a nearly three-year legal battle, a United States district court ruled that the state had demonstrated no compelling reason to prevent minor parties from nominating for statewide offices without individual candidate petitions. The (unanimous!) response from our state house is to prevent minor parties from nominating for statewide offices without individual candidate petitions.
I’d guess Shantel Krebs probably isn’t looking forward to going back to court to defend Mark Mickelson’s interpretation of the Constitution.
Requiring third party candidates to submit substantially more signatures to get on the ballot than either Democrats or Republicans will fail in court. Nobody ought to think that allowing Democrats or Republicans into a legislative race with 50 or fewer signatures but requiring third party candidates to collect over 100 signatures is either fair or constitutional.
Why is Spencer Hawley attaching his name to something that serves only the Republican goal of keeping Libertarian and Constitution party candidates off of the ballot? Democrats ought to welcome Libertarian and Constitution party candidates to run. Republicans are for competition, except against themselves.
People like Mark Mickelson, Spencer Hawley and Steven Haugaard suggest that people like me “just clutter the ballot”…
For the record, guys, the feeling is mutual.
One aspect of the bill that no one has mentioned is that it moves the petition deadline for independent candidates from April to July 1. That had nothing to do with the lawsuit, but it is a good idea.
Why can’t we be like other states and pay a $125 filing fee and start campaigning? THAT is the way to wrest power from the power mongers in the Republican party. THAT is the way to get a pure Republican party ….by going to the people (campaigning if you will) to expose what the Party Brass is doing. One of the reasons we are one of the most corrupt states in the nation is because those in power hide their actions and crush anyone who opposes their fascist (meaning Corporatism) ideas.
Kurt, I think you’re right about vacancy filling: SDCL 12-8-6 appears to restrict that vacancy filling to nominations made in primary elections. The major parties thus get more authority to preserve their spots on the ballot than new/alt parties.
Richard, good catch! Independents do benefit from a later deadline! I’ll revise my post to reflect that boon!
But notice that Section 11, which Richard points out, does not change SDCL 12-7-5, which prohibits failed primary candidates from reupping as independents.
Ror,
I agree with you on the issue of why Spencer Hawley is getting mixed up in this mess. Republicans own this debacle. Let them lead the way out of the mess they have created. How many taxpayer dollars have been wasted defending this unconstitutional legislative creation? Oh, that’s right– the people have no right to know!
Cory updates his post:
But what compelling interest does the state have in a deadline earlier than August, which is where it always used to be?
Please consider my comment at this blog’s predecessor in January 2015:
http://madvilletimes.com/2015/01/sb-69-may-unconstitutionally-limit-new-party-ballot-access-how-to-fix/#comment-401841
Since 1938, North Dakota has had more than 30 non-major-party candidates for the U.S. Senate. Iowa has had about 50, and Minnesota has had more than 60. Including Gordon Howie and Larry Pressler in 2014, South Dakota has had 8.
https://dakotafreepress.com/2015/03/11/sb-69-prohibiting-party-members-from-signing-indy-petitions-will-fail-court-challenge/#comment-630
In my first comment above (2018-02-24 at 10:08), I’d written:
For the record, I’d still like to hear your read on that, Cory. :-)
Got it, Kurt! I don’t think Section 11 affects statewide candidates nominated at party convention for the seven constitutional offices listed in SDCL 12-5-21. Section 11 amends SDCL 12-7-1, which is in the chapter on Nomination of Independent Candidates. Read in isolation, the language of SDCL 12-7-1 now, like the language of the Hawley amendment, might lead us to the conclusion you suggest—holy cow! AG, SOS, and other second-tier statewide candidates have to file petitions!—but the context makes clear that requirement applies only to independent candidates…
…which is still kinda bonkers: belong to a party, and you only need a few convention goers (maybe ten at the 2014 Libertarian convention, maybe several dozen at a GOP or Dem convention?) to put your name on the ballot, but choose not to belong to a party, and you have to go get 2,775 people to sign your petition? Call Judge Piersol!
Kurt is right about crappy language. Read Section 8: it breaks up the new second criterion in a way that makes it unclear whether petitioners have to get their 250 signatures only from members of their new/alternative party.
Cory writes:
Mark Mickelson wants to impose a single-subject rule on constitutional amendments, but he apparently has no problem confusing us with multiple-subject bills (ha ha). Thanks for helping me decipher that one, Cory.
Some of the signature requirements for independent candidates are indeed bonkers. That’s why South Dakota has had so few of them.
Hey Cory, I just got off the phone with our attorney, and I have a follow-up question.
Section 6 of the bill the senate passed today says this:
http://sdlegislature.gov/docs/legsession/2018/Bills/HB1286S.pdf
Would Section 6 require new/alternative party candidates to file individual candidate nominating petitions for lieutenant governor, attorney general, secretary of state, state auditor, state treasurer, commissioner of school and public lands, and public utilities commissioner?
Dang, Kurt, you may be right.
The nominating statute for the offices you mention, SDCL 12-5-21, is in the same chapter, but the language of Section 6 does not refer to that statute in its opening excepting clause. “No candidate for any office to be filled” seems to include the folks running for AG, SOS, etc.
How blind can the Legislature be to Judge Piersol’s ruling?
Cory asks:
I could more easily forgive the house for being hoodwinked at the last minute by Mickelson, et al. Every member of the senate was clearly and explicitly informed of the ways in which HB 1286 violates the U.S. Constitution. Then they passed it 26-8:
http://sdlegislature.gov/Legislative_Session/Bills/RollCall.aspx?Vote=26801&Session=2018
Setting aside the legal battle, what ever happened to Christ’s teachings and the Golden Rule? The legislature seems to be intentionally violating the rights of at least several thousand South Dakotans to vote for our candidates of choice. The whole mess is like SB 69 all over again, and I’m having trouble avoiding the conclusion that many of these legislators are simply awful human beings.