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SB 74: Block Legislative Primary Losers from Accepting Alternative Party Nomination

South Dakota has a “sore loser” law, SDCL 12-7-5, and an absurdly early independent petition deadline (this year: April 28!) before the primary, that prevent a candidate who loses a party primary from filing to run as an independent for the same office in the general election. However, the great Libertarians v. Krebs (2018) ruling and the subsequent ballot access reforms it mandated opened the door for primary losers to join or even form a new political party and secure that alternative party’s nomination for the same office by the second Tuesday in August. Hooray for ballot access, right?

Wrong, say Republicans! Senator Jim Bolin (R-16/Canton) has filed Senate Bill 74 to make sure nobody gets more than one shot at running for Legislature during one election year. SB 74 proposes this new section to our primary election chapter:

Notwithstanding any other provisions, if a candidate has been defeated in a primary election for office in the Legislature, the candidate may not run for that office under the affiliation of a different political party in the same election year as the primary election [2020 SB 74, as introduced 2020.01.24].

Senator Bolin and co-sponsor Reps. Latterell, Brunner, and Zikmund apparently want the two main parties to maintain more control over Legislative elections and deny candidates and voters more options. I can’t think of any compelling interest the state has in preventing people who’ve lost a Legislative primary from seeking an alternative route to that office in the same year’s general election. Suppose Senator Bolin runs for reëlection, faces no Democratic challenger, but is ousted in a low-turnout Republican primary by a radical conservative interloper. Should the maybe 5% of District 16 voters who pick the interloper over Bolin be able to prevent the general electorate from having a choice between the primary victor and Bolin running as a Libertarian or Constitutionist?

As with ballot measures, Republicans seem keen on overregulating elections instead of letting voters decide. Candidates who jump ship from their party to run under a different banner already face a disadvantage under “sore loser” branding: they have to explain to the voters why they changed their affiliation and face the backlash of former fellow partisans and donors who may feel betrayed. If there is any problem with a candidate running for Senate or House in the primary as a Republican, losing, then trying again in the general as a Libertarian, we don’t need a law to solve it. If the voters don’t have a problem with such unusual behavior, then why should the law care?

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Note that SB 74 only places this restriction on Legislative candidates. Maybe I’m missing some other sore-loser law, but it would appear that even if SB 74 passes, candidates for U.S. Senate, U.S. House, and Governor could still lose in the primary, then drop by the Libertarian or Green or who-knows-what other alternative party convention and offer themselves as standard bearers in the same races for those offices.


  1. Loren 2020-01-26

    Someone like a Lisa Murkowski (AK) might disagree with a proposal like this along with the state that elected her, not to mention a GOP party that loves gerrymandering, register purges, ID laws, voter suppression, limited polling places/hours, etc, etc… Why is the GOP so afraid of the voice of the people?

  2. bearcreekbat 2020-01-26

    This sure looks like another unconstitutional proposal. It is hard to imagine how losing a party primary disqualifies anyone for public office if ultimately chosen by other voters.

  3. Cory Allen Heidelberger Post author | 2020-01-26

    Curious: since there’s no emergency clause on SB 74, it would take effect July 1. If a Republican candidate for Legislature loses a primary on June 2, then received the Libertarian nomination for Legislature on June 22, would that candidate evade SB 74 and appear on the November ballot?

  4. bearcreekbat 2020-01-26

    Cory, the Ex Post Facto Clause says yes. SD Const art VI, § 12

  5. grudznick 2020-01-26

    Mr. Bolin, who by some accounts was a great teacher, at the very peak of the SILT (seven indisputable levels of teachers) back in his days of hay, has wonderful ideas. Many say he is the most constitutionally minded conservative in the legislatures. He has never lost in the debatings.

  6. Debbo 2020-01-27

    In the meantime, the SDGOP ignores issues that are major concerns to South Dakotans. Education, health care, infrastructure, farm economy, flooding woes, etc.

    Oh yeah, Economic Oaf is planning to bloc grant Medicaid. That will result in a cut of about 25%, which means about half the nursing homes in the state will fold and treatment options for opioids, booze and other addictions will probably disappear entirely.

    But yeah SDGOP, let’s write bills about nonexistent problems.

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