Last week, Judge Roberto Lange wisely kept the U.S. District Court out of the wild fractiousness that has once again legally dissolved the Constitution Party of South Dakota. In his October 1 ruling, Judge Lange said that competing Constitution Party gubernatorial candidates Lora Hubbel and Terry LaFleur offered him no Constitutional argument as to why a federal court should intervene in a state case still on appeal, stop the election, throw out thousands of early cast ballots, and order ballots reprinted with either of their names.
Judge Lange did offer a really interesting footnote on South Dakota’s convention law. He suggests that the law requiring parties to give the Secretary of State 30 days’ notice of their conventions may not apply to new political parties. That statute, SDCL 12-5-17, applies to state conventions held “for the purposes of § 12-5-21,” which statute in turn refers to state party conventions that “nominate candidates for lieutenant governor, attorney general, secretary of state, state auditor, state treasurer, commissioner of school and public lands, and public utilities commissioner and in the years when a President of the United States is to be elected, presidential electors and national committeeman and national committeewoman of the party.”
But Judge Lange notices that the new law we passed this year concerning new and “alternative” parties like the CP (House Bill 1286, now SDCL 12-5-25 and SDCL 12-5-26) may excuse alternative parties from that 30-day notice. Those statutes authorize new and alternative parties to “nominate a candidate for United States Senate, United States House of Representatives, Governor, and any legislative seat” [but not Attorney General, Public Utilities Commissioner, or other statewide offices?] “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.” Those statutes make no reference to SDCL 12-5-21, and SDCL 12-5-17 makes no reference to these two new statutes. Thus, the 30-day notice requirement appears not to apply to conventions of new and alternative parties like the CP.
Judge Lange noted that “The constitutionality and in turn enforceability of the thirty-day prior notice provision is subject to question but not framed for this Court’s decision here.” The timing of the Constitution Party’s notices of its last-minute August re-conventions had far less to do with its failure to earn a spot on the gubernatorial ballot than its inability to agree on which faction represents the actual party.
But Judge Lange’s point is worth taking: the new breaks the Legislature approved for new and alternative parties this year appear to include exemption from the requirement to notify the Secretary of State a month ahead of time when and where they plan to convene and nominate candidates.