House Bill 1286, as amended Friday by Rep. Spencer Hawley (D-7/Brookings), fouls the bill’s original intent of satisfying the demands of the Libertarian/Constitutionist lawsuit that the state lost on Wednesday. But if it passes with its emergency clause, HB 1286 will change our petitioning rules in the middle of a campaign that has already started for many candidates. HB 1286 will also open up possibilities for parties who don’t get their way in the primary to throw spoilers onto the November ballot.
Fellow election nerds, let’s dig in!
First, let’s review the new signature thresholds for party candidates in HB 1286. The Hawley amendment keeps the current petition thresholds: major party candidates can get on the ballot by collecting signatures from their fellow party members totaling at least 1% of the vote their gubernatorial candidate got in the last election in the jurisdiction in which they are running. New and alternative parties can get on the statewide ballot with 250 signatures from fellow party members and on Legislative and county ballots with five signatures.
But the Hawley amendment offers party candidates a second petition route to the ballot. HB 1286 allows party candidates to collect signatures from any voter, regardless of party affiliation, just as independents can now. But in exchange for accessing a much larger field of signers, HB 1286 requires more signatures—1% of the total vote for Governor in the last election, just as independents must get now.
Let’s see what that would mean for, say, Billie Sutton. He’s running for Governor and collecting signatures from fellow Democrats right now. He needs 706 Democrats to sign his petition. When he asks for signatures, he has to check: “Are you a registered Democrat?” If he meets independents or Republicans for Sutton at his events, he can shake their hands and take their money, but he can’t get their signatures. Pass HB 1286 next week (and if it’s really an emergency, why wait?), and Billie can hand his petition to those non-Democrats at his rallies and say, “Go ahead and sign!” But if he starts taking non-Dem names, he has to collect more signatures—a lot more: 2,775, same as an independent candidate under current law.
Nearly quadrupling the number of signatures necessary to get on the ballot may not be worth the indy-outreach effort for Team Sutton. But his Republican opponents, Kristi Noem and Marty Jackley, might find the Hawley amendment appealing. They each need 1,955 Republican signatures on their petitions. Including non-Republicans in their petition drive would only raise their signature threshold 42%.
Cross-party petition outreach may be even more appealing in Legislative and county races, where the signature requirements are low enough that even doubling them doesn’t pose so great a challenge that it outweighs the benefits of not having to sift through potential signers for fellow party members. Especially in local elections, candidates can find people who are more interested in supporting their friend and neighbor than in supporting a party label. Being able to take those signatures without asking a friend or neighbor’s party affiliation can avoid some awkwardness and speed the petition process. I know from my own petition circulating for school board, city council, and ballot measures that I can collect signatures much faster when I don’t have to ask about party affiliation. I can probably collect the 100 signatures the Hawley amendment allows from all voters as fast as I can collect 50 signatures solely from fellow Democrats. I would reduce the awkward “Sorry, I can’t take your signature” conversations, and since the “sorry” conversations would only be with non-registered voters, I could turn all of those negative interactions into positive, “Oh, I can help you register!” opportunities.
HB 1286 does throw a kink in circulating for independents running for non-statewide office. Section 5 doubles the number of signatures independent candidates must get in counties using vote centers from 50 to 100 (election-nerd explanation: vote centers make it impossible to count in-district voter turnout for governor, so we can’t get a clear 1% of the gubernatorial vote to set the threshold, so current statute sets a flat 50 signature threshold). One independent, Cory Ann Ellis in District 7, has already filed her petition and satisfied the 50 signature requirement. If HB 1286 emergencially (?!?) passes, cranky partisan opponents might grouse that Ellis now need to go get 50 more signatures. Such grousing should fail: we can’t ex post facto demand Ellis redo her petition drive when she followed the law and properly qualified for the ballot on February 7, when Speaker Mickelson was still sitting on HB 1286 gambling that the court would throw out the Lib/Con lawsuit.
But immediate enactment of HB 1286 would create an interesting situation in which any other independents who want to join Ellis on the District 7 ballot would have to collect twice as many signatures as she did. A practical independent would probably just take the path of least resistance and go get the extra 50 signatures. But a strong-willed and litigative independent could argue that the Legislature can’t up and change the rules for getting on the ballot in the middle of petition season. If one District 7 independent can get on the ballot by collecting 50 signatures by April 24, then all District 7 independents should be able to get on the ballot by collecting 50 signatures by April 24.
Oh, did I mention April 24? Don’t forget: HB 1286 also changes that deadline. The Hawley amendment sweeps up independents in the change intended for new and alternative parties and moves the independent candidate petition filing deadline from the last Tuesday in April to July 1 (which is not as awesome as the first-Tuesday-of-August deadline we had for indies prior to 1999, but I’ll take it!). So while any District 7 indies who submit petitions by April 24 should be able to qualify with just 50 signatures, I’ll contend it would be fair, upon passage of HB 1286, to expect District 7 indies filing after April 24 to comply with the higher signature requirement.
That later deadline for independents also opens the door for some creative spoiler action—or perhaps sour grapes action—by parties whose primaries don’t got the way they want.
Let’s turn to District 19, where Senator Stace Nelson is a burr under the Republican Party’s saddle. In 2016, the SDGOP recruited Caleb Finck to primary Nelson in hopes of restoring the reliably Republican seat to a good little Republican waterboy. Finck failed to beat Nelson in the primary, thus ensuring the return of the GOP establishment’s least favorite Republican winner.
If Republicans tried and failed this year to primary Nelson out of his seat, they still could not put their Finck on the November ballot as an independent. The Hawley amendment does not change SDCL 12-7-5, which prohibits primary losers from reupping as independent candidates for the same office. But Republicans disappointed with their nominee could quickly organize a petition drive to put another party favorite on the ballot and challenge Nelson in November.
Or think bigger: suppose the Noem/Jackley primary turns super-ugly. Suppose Kristi’s pageant hair and out-of-state money beat Marty’s actual executive experience, and suppose the Jackley faction of the party is torqued. They can’t bring themselves to break from the party and put their names in a Democrat’s campaign finance report, but they recognize that a competent Democratic governor is better for South Dakota than a witless Noem administration. (Plus, it’ll be easier for Marty to run against Governor Billie in 2022 than to either primary a Governor Kristi in 2022 or wait for the seat to open in 2026.) Instead, the Hawleyized HB 1286 would allow disaffected Jackleyites to field a June spoiler, an angry but manageable conservative (Lee Schoenbeck! Lee Schoenbeck!) who could collect 2,775 signatures after the primary, pull away a good 30% of Noem’s base, and deny Kristi the governor’s chair that she denied Marty.
I know the latter scenario is a stretch, but the Hawley amendment to House Bill 1286 makes that and much more petition and election fun possible. HB 1286 still isn’t enough to make Judge Piersol happy, but the more I think about it, the more I like HB 1286.
Cory writes:
The court found that the state violated the Constitution by refusing to place me on the ballot as a U.S. Senate candidate in 2016. I’m wondering whether the South Dakotans whose right to vote for me was abridged can sue for damages.
Which is disappointing, to say the least, since a United States district court just ruled—at the end of a nearly three-year legal battle—that the state had demonstrated no compelling reason to prevent minor parties from nominating for statewide offices without individual candidate petitions.
Doesn’t Section 11 of HB 1286 create a new requirement for all statewide candidates 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), wouldn’t the bill require thousands of signatures to nominate a minor-party candidate for lieutenant governor, attorney general, secretary of state, state auditor, state treasurer, commissioner of school and public lands, or public utilities commissioner?
I’m not sure what a political party is supposed to be if the state can force it to accept candidates nominated by people who aren’t even members of that party. This flagrantly violates the constitutional right to freedom of association. Beyond that, it’s absurd. If a party is having trouble fielding candidates, the required number of signatures is obviously too high. Rather than inviting more lawsuits, a sane response would be to simply lower it.
It’s ironic that Rep. Steven Haugaard cites avoiding ballot clutter as his rationale for a bill that prevents minor parties from nominating without individual candidate petitions, considering that the same bill seeks to make ballot-access even easier for the Republicans who routinely run four- and five-candidate taxpayer-financed primaries. I’m not saying a five-candidate race constitutes “ballot clutter”; it doesn’t. I’m only pointing out the blatant hypocrisy and doublespeak of Republican legislators like Mark Mickelson and Steven Haugaard.
The major parties can still replace withdrawn candidates until August. What compelling interest could the state possibly have in denying minor-party and independent candidates the same deadline?
The first time an independent candidate files a nominating petition—or a minor party nominates a candidate—on July 20, the state is once again vulnerable to a lawsuit, and the secretary of state is left to explain what compelling interest these arbitrary Mickelsonian ballot-access restrictions supposedly serve. As I’ve said before, it’s too bad the legislators who impose the restrictions don’t have to defend them on the witness stand.
I’d written:
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.
Again, South Dakota has had 8 non-major-party U.S. Senate candidates in the last 80 years. This is an example of the supposed “ballot clutter” from which Republican legislators like Mark Mickelson and Steven Haugaard say they’re trying to rescue us.
Kurt, you are right: the hacks who threw together this amendment would have benefited from some time in the witness stand, or even in the audience, at the trial, not to mention from reading Judge Piersol’s ruling. By itself, the Hawley amendment offers some interesting and possibly useful changes, but it still doesn’t meet the demands laid on the state by Judge Piersol and the U.S. Constitution.
Mr. Evans wrote:
It is possible, Mr. Evans, that those people could sue you for messing up their choice to vote for you. They might be able to sue you, indeed. Both of those people who were going to vote for you could.