Legislature Fixes South Dakota’s Unconstitutional Ballot Access Laws!

Update 11:02 CST: In my original post, I erroneously accused the Legislature of failing to fix House Bill 1286 and South Dakota’s unconstitutional ballot access laws. I erred in reading only to March 6 version of HB 1286, which was the latest version of the bill posted at the time I wrote at breakfast this morning. A more careful review of the conference committee amendment passed yesterday reveals that the conference committee didn’t just undo the Senate amendments but reverted the bill to the superior text of the originally printed version of the bill, with some minor amendments. The full conference committee version just went up on the LRC website this morning. I apologize for the error and revise my original post below to reflect the fact that, as Constitution Party members Lori Stacey and Kurt Evans pointed out in their early comments on the original post, the Legislature appears to have finally listened to South Dakota’s alternative parties and to the U.S. District Court and made the changes necessary to make our ballot access laws constitutional!

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On Monday in Senate State Affairs, Senator Brock Greenfield said that House Bill 1286, the emergency ballot access reform bill, satisfies the requirements Judge Lawrence Piersol laid on the state when he ruled last month that South Dakota’s ballot access laws violate the Equal Protection Clause.

This statement was false on February 23, when the House messed it up. This statement was false on Monday when Senator Greenfield responded to Senator Jim Bolin’s question on the topic. This statement was finally truthified Thursday, as conference committee reverted HB 1286 to its original printed form, made a few minor changes, and produced a bill that passed both chambers and is headed to the Governor’s desk.

Senator Greenfield and 25 of his fellow Republican Senators who ayed HB 1286 Tuesday apparently ignored the clear, detailed explanation e-mailed to them on Monday by South Dakota Libertarian Party chairman Aaron Aylward, whose party won ballot-access relief from Judge Piersol. In a nutshell, the Tuesday Senate version of HB 1286 not only ignored Judge Piersol’s ruling that new and alternative parties ought to be able to bypass the nominating petition process and nominate all of their candidates at convention but also reversed that right and forced all new/alt candidates, even those for second-tier offices like Secretary of State and Attorney General, to circulate petitions.

Here are Aylward’s six reasons that Tuesday’s HB 1286 fell short of what Judge Piersol said South Dakota’s new and alternative political parties deserve:

First, HB 1286 states in section 6 that “no candidate for any office” sought by an alternative party may have his/her name placed on the general election ballot “unless a petition has been filed” before July 1 containing a certain number of signatures. Thus, this provision would apply even to the candidates for Secretary of State, Attorney General, PUC, treasurer, and the other candidates listed in 12-5-21 (the so-called “convention” offices because the candidates are selected at the party’s convention). Note that HB 1286 would still allow the major parties to select their candidates by convention without those candidates having to submit nominating petitions. Only candidates for alternatives parties would have this burden. This is one example of how 1286 would make things even worse for third parties than exists currently. (The original 1286 endorsed by Ms. Krebs allowed alternative parties to select all candidates by convention without their having to submit any nominating petitions, provided that the party obtained a sufficient number of signatures submitted to the SOS by July 1.)

Second, Section 10 of HB 1286 states that the number of signatures that need to be on the petitions submitted by candidates for US Senate, US House, and Governor are 250. But nowhere does HB 1286 state how many signatures need to be on the petition for the “convention” offices. Therefore, 1286 is vague and ambiguous: on the one hand, it states that all candidates need to submit nominating petitions but, on the other hand, it neglects to state how many signatures are required for candidates seeking a “convention” office.

Third, HB 1286 does not repeal 12-5-21. That law allows all parties to select candidates for the “convention” offices at the party’s convention. Passage of 1286 would thus create a conflict with 12-5-21 because 1286 requires candidates of the alternative parties to submit nominating petitions whereas 12-5-21 does not contain any such requirement. Moreover, under current law, the names of the candidates can be delivered to the SOS by the second week in August but HB 1286 cuts that time by six weeks and requires that the names be submitted by July 1. There is no valid reason for reducing the time allowed to select these candidates.

Fourth, because sections 6 and 10 apply to alternative parties and not to the major parties, the major parties remain free to select their “convention” candidates at their conventions without nominating petitions whereas the alternative parties would need nominating petitions, thus discriminating against candidates from the alternative parties. Courts generally require a party to show it has a “modicum of support” to have its name of the ballot, not its candidates. Here, HB 1286 requires certain candidates to gather an enormous number of signatures, and there seems to be no valid reason for doing so once the party has qualified for the ballot. (For instance, candidates for Governor need 250 signatures from members of the candidate’s party. That may seem easy to do for the major parties. But the Constitution Party has fewer than 500 members scattered around the state, and thus a CP candidate must obtain signatures from more than 50% of the party’s members. Imagine how difficult that would be if the major parties had to obtain the same percentage. This also means that new parties that have fewer than 250 registered members cannot possibly place a candidate for Governor, US House, or US Senate on the ballot–ever!)

Fith, if it is true that candidates for the “convention” offices must submit signatures (as Section 6 requires), this is a new requirement that should not apply to the 2018 election and HB 1286 should contain an exception for the upcoming election. Courts generally agree that new signature requirements for office cannot be imposed during the time that candidates would need to be gathering those signatures. Here, Section 6 would suddenly require candidates from alternative parties for PUC, treasurer, SOS, AG, etc., to gather signatures when, under 12-5-21, they never thought they would need to do that. It would be unfair to require signatures when no one is out gathering them. (Moreover, as noted above, 1286 fails to state how many signatures these candidates need to submit.) Imposing this new signature requirement on candidates who had no notice they would need to gather signatures violates the Due Process Clause.

Sixth, Judge Piersol’s decision indicates that new parties can select all of their candidates at the party’s convention. Therefore, candidates have no reason to be gathering signatures now. Yet, HB 1286 would reimpose a signature requirement. For reasons just explained, it would violate the Due Process Clause to now require those candidates to meet a signature requirement. Thus, even if HB 1286 were passed, it should not apply to the 2018 election [Aaron Aylward, e-mail to South Dakota Senators, received by Dakota Free Press2018.03.05].

Remember, it was Democratic Representative Spencer Hawley who offered the House amendment that trashed the fairer and more lawsuit-responsive original language proposed by Secretary Krebs and triggered the problems Aylward identified. Democrats in the Senate paid attention to Aylward’s complaint, as did Republican Senators Otten, Peters, and White. So, thankfully, did the conference committee, which struck the Hawley Amendment and all other foolishness and restored the Secretary of State’s original HB 1286, with some minor language changes and one new section clarifying the deadline for new parties to form if they want to nominate candidates for the primary. Most important in terms of satisfying the Equal Protection demands of Judge Piersol is Section 3 of the conference committee bill:

A political party with alternative political status may nominate a candidate for United States Senate, United States House of Representatives, Governor, and any legislative seat by convention, if the nomination is submitted with the proper documentation to the Office of the Secretary of State no later than 5:00 p.m. central time on the second Tuesday in August, of the year of the election.

Along with the post-primary, July 1 deadline for nominating petitions from independents and alternative-party candidates, that all-convention option is crucial to making South Dakota’s ballot access constitutional again. Current law allows parties to nominate certain candidates—secretary of state, attorney general, treasurer, auditor, public utilities commissioner, and commissioner of school and public lands—at convention while requiring candidates for Legislature, Governor, and Congress to file by the last Tuesday in March to run in the June primary. Judge Piersol said the state can’t constitutionally create separate standards for nominating those sets of candidates; conference committee fixed that unconstitutionality by reverting to Secretary Krebs’s original Section 3.

The Senate voted 32–0 yesterday for HB 1286. The House voted 59–5, with the only nays coming from Reps. Clark, Greenfield, Latterell, Mickelson, Rhoden, among whom Mickelson in particular has failed to distinguish himself as a constitutional scholar or friend of alternative political parties.

By dilly-dallying for over a month on HB 1286, the Legislature left the state hanging to get whacked in court. Even so stung by Judge Piersol’s adverse ruling, the House and Senate voted on February 23 and March 6 to ignore the judge’s ruling. Luckily, a little pressure from our alternative parties worked, and our Legislature gave alternative and new political parties in South Dakota the constitutional ballot access rights that Judge Piersol said they deserve.

So look at that: South Dakota Libertarians and Constitutionists have scored two victories, one in court, one in the Legislature, in less than a month! Now let’s see if they can translate those victories into victories at the polls in November.