Open Primary Would Require Overhaul of Petition Law, Primary Timeframe, Standard for Keeping Official Party Status

Black Hawk activist Nick Reid has received approval from the Secretary of State to circulate his petition for an initiated amendment to implement open primaries in South Dakota. SOS Steve Barnett approved the petition on July 19 but, a week later, still has not posted that document to his ballot question webpage. The Attorney General’s explanation indicates that Reid’s final language mostly follows the original draft he submitted for review last fall, with a couple of changes recommended by the Legislative Research Council:

BE IT ENACTED BY THE PEOPLE OF SOUTH DAKOTA:

Section 1. That Article VII of the Constitution of South Dakota be amended by adding NEW SECTION to read:

§ 11. A primary election shall be held prior to the general election to nominate candidates for the office of Governor, the Legislature, all county elective offices, and the United States Senate and House of Representatives. The primary election for such candidates shall be open to all registered voters. The two candidates who receive the most votes in the primary are the nominees for each office. If more than one candidate is to be elected to an office, the number of nominees shall be twice the number to be elected.

The Legislature shall provide by law any provisions necessary to implement this section [Nick Reid, proposed initiated amendment, included with Attorney General’s explanation, received by Secretary of State’s Office, 2021.03.18].

That last line is vital, because an open primary that chooses all candidates for the November ballot will require some Legislative adjustment of petition law, alternative nomination procedures for new and alternative parties, and our criterion for maintaining political party status.

First, fair access to an open primary ballot requires revision of the nominating petition process. Right now, candidates from different parties must collect different numbers of signatures on their nominating petitions to qualify for their parties’ separate primary ballots. Per SDCL 12-6-7, partisan candidates must collect signatures equaling 1% of the total votes their gubernatorial candidate got in the last general election. Based on the 2018 election, Republicans running for statewide office must collect 1,730 signatures; Democrats, 1,615. Kurt Evans’s 4,848 votes in 2018 leave his Libertarians having to collect the statutory minimum of 50 signatures for their next statewide candidates. SDCL 12-7-1 sets the bar higher for independents, requiring them to collect signatures equal to 1% of the vote for all gubernatorial candidates at the last general election.

Such different signature thresholds may be justifiable for separate party primaries, but only because party candidates are limited to collecting signatures from fellow party members. If all candidates are seeking placement on a unified open primary ballot on which any registered voter can vote, it is only fair that every candidate should have the same burden to get on that ballot. If we enact the open-primary amendment, the Legislature should thus establish a common signature threshold for all candidates for a given office. The 1% threshold for independents seems punitively high, so I recommend setting the threshold at 0.5% of votes cast in the last gubernatorial election in the state, county, or Legislative district.

An open primary for all candidates will also require changing our timelines for nominations… or maybe for the primary itself. Under SDCL 12-6-4, primary candidates must submit nominating petitions by 5 p.m. Central on the last Tuesday in March. That gives time for the Secretary of State to review petitions and prepare ballots by mid-April, in time for early voting to begin 45 days before the election. Independents may collect signatures until the last Tuesday of April (see SDCL 12-7-1), after early primary voting begins. New and alternative parties may skip the primary and nominate candidates at their conventions until the second Tuesday in August (see SDCL 12-5-25 and SDCL 12-5-26).

An open primary would require all candidates to submit their petitions more than two months before the primary. But in South Dakota, requiring all candidates to submit petitions by the end of March would deprive independents and new and alternative parties to organize in response to failures of the Legislature and the Governor in the election year Session. Rather than preserving the March petition deadline and imposing that early, incumbent-favoring timeframe on independents and new/alternative parties, I recommend amending SDCL 12-2-1 to set the primary date as the Tuesday after Labor Day, then setting the petition deadline as the last business day before July 4.

The open primary also poses a problem for our criterion for maintaining official party status. To retain their official status, political parties must have at least one candidate on the statewide ballot who wins 2.5% of the total vote in one of the two last general elections (see SDCL 12-1-3, definition #12). The open primary creates the possibility that a party that fields candidates may not qualify any of them for the general election. Not only perennial third-place independents and Libertarians but even South Dakota Democrats could lose an open primary to two popular Republicans in each race. Those parties would still have the ability to fight for their official party status by nominating candidates for the statewide constitutional offices not affected by the open-primary amendment (Secretary of State, Attorney General, Auditor, Treasurer, Public Utilities Commissioner, Commissioner of School and Public Lands), but the open primary should not reduce the ability of active parties to retain their official status. Thus, I recommend amending SDCL 12-1-3 to make official party status depend on winning 2.5% of the vote for any statewide office in either the primary or the general election in the last two election cycles.

Those are just the major areas where the Legislature would have to amend statute to preserve fair ballot access under an open-primary system; there are likely numerous other smaller statutory references that would require a tune-up to jive with selecting the top two candidates (or four for State House!) in an open primary. But that’s part of why election nerds like me would vote for the open primary amendment: so we can really dig into the details of election law and maybe make it worker better for more candidates and more voters!