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Barnett Misreads Law, Resists Placing Libertarian Nominees on Ballot

On Saturday I reported that the Libertarian Party of South Dakota had nominated a slate of candidates for statewide and Legislative offices at its April 23 convention in Chamberlain. I noticed at the time that the Secretary of State had not yet added those nominees to its list of 2022 candidates, but I figured, no worries—the Libertarians have until August 9 to send their certifications to the Secretary.

But wait—Libertarian Party chairman and District 17 Senate nominee Greg Baldwin tells me the Secretary of State is refusing to recognize the certification the party sent on Monday, April 25:

Greg Baldwin and CAH, Twitter conversation, 2022.05.03.
Greg Baldwin and CAH, Twitter conversation, 2022.05.03.

Baldwin is off one number in his first statutory citation, but he is correct that South Dakota has different statutes on when political parties must certify their nominees to the Secretary of State. SDCL 12-5-22 says, “Nominations by a state convention shall be made by a majority vote of the votes cast and shall be certified to the secretary of state by the officers of the convention, within three days of the close of the convention.” That statute was last amended in 2007. That statute was the basis of the South Dakota Democratic Party’s 2018 snafu in which it had to redo its convention to nominate statewide candidates for the November ballot after failing to submit their certification before that three-day deadline.

But the Libertarian Party isn’t any regular party (boy, aren’t they ever?!). The Libertarians are an alternative party, a special status created in 2018 after their important court victory for ballot access. Under SDCL 12-1-3.1, an alternative party is any party that “has a total party registration of less than two and a half percent of the total number of registered voters….” As of this morning, the Libertarians constitute 0.46% of South Dakota’s electorate. (A party can’t get much more alternative than that and still exist.) Among the statutes enacted to comply with the standards established by the court in Libertarians v. Krebs (2018), the Legislature created SDCL 12-5-25, which allows certain alternative party candidates to reach the ballot either via primary election or by convention nomination. The convention clause of SDCL 12-5-25 says, “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.” That statute does not set any three-day post-convention deadline; it says alternative parties have until the second Tuesday in August to submit their nominations to the Secretary of State.

Secretary Barnett appears to be misapplying rules for regular parties to alternative parties. Just as he couldn’t remember Amendment Y’s placement on the 2018 primary ballot, Secretary Barnett appears to have forgotten the court’s and the Legislature’s mandate in 2018 that the Libertarians and other alternative parties receive different treatment from the main parties.

Under SDCL 12-5-25, the Libertarians’ nominations are legal and valid. Whatever strange route their certification letter took to Pierre, that letter has arrived in the Secretary’s hands well before the statutory deadline of August 9, and Secretary Barnett is bound by law to place those legally certified nominees on the November ballot.


  1. larry kurtz 2022-05-05 07:50

    Another Republican Secretary of State manipulating voter rolls? What a shocker. Neal Tapio told an interested party via Facebook Messenger that he was urged by the chair of the South Dakota Republican Party to get into the 2018 US House primary to siphon votes from then-Secretary of State Krebs so Dusty Johnson had smooth sailing to the nomination.

  2. Mark Anderson 2022-05-05 08:11

    Maybe Barnett became a Libertarian himself and forgot. They are Republicans who smoke dope after all.

  3. Arlo Blundt 2022-05-05 18:04

    Well…the Republican strategy when it comes to applying the law in election cases, is to be dim witted and lethargic. Dolts. How can they be blamed??? There are so many laws. When I once presented a local official with a copy of the statutes and administrative rules affecting a mandatory action he needed to take, he replied,”You want me to read all that???”

  4. ABC 2022-05-05 22:26

    Under 12-1-3.1; then you could set up an Alternative Political Party with 50 or 100 people only, then have a Convention or primaries every 2 years? Sounds easy. No 8000 signatures requirement.

  5. Cory Allen Heidelberger Post author | 2022-05-06 08:11

    Well, ABC, it’s not that simple. The Libertarians v. Krebs case led the Legislature to allow new parties to organize as late as July 1 to place candidates on the general election ballot by convention nomination. However, whether organizing by July 1 under SDCL 12-5-1.5 or organizing by the last Tuesday in March to participate in the primary under SDCL 12-5-1, a new party must collect and submit signatures from a number of voters equal to at least 1% of the turnout in the last gubernatorial election. Right now, that’s 3,392 signatures.

    But if you can organize a petition drive of that scale—and the signers can be any voter of any party affiliation—then once you’ve gotten at 3,392 people to sign a petition saying, sure, let this new party form, then, yes, you can nominate candidates for statewide and Legislative as easily as the Libertarians can, at a meeting of maybe 15–20 people. If your party draws interest and the number of people putting your party label on their voter registration exceeds 2.5% of the total registered voters in the state, you lose alternative party status (per the statute you cite, SDCL 12-1-3.1) and have to pick candidates for Congress, Governor, and Legislature through the primary process.

  6. ABC 2022-05-06 15:31

    Thank, Cory!

    So that’s 3,392 signatures or more, submitted by July 1, 2022 (or July 1, 2024 for 2024 elections) to the Secretary of State?

    Once that’s accepted, then the Party can have a convention, and nominate candidates?

    A lot of signatures, it is do-able, though.

  7. Cory Allen Heidelberger Post author | 2022-05-07 06:44

    ABC, that’s correct. 3,392 is equal to the number of signatures an independent candidate has to collect to get on the ballot. It is one fifth of the signatures needed to put an initiated measure on the ballot, and one tenth the number required to place a constitutional amendment on the ballot.

    Think of the task in daily terms: you have 54 days until the deadline. Assume 80% of the signatures you collect will be valid. To be safe, you’ll want to collect 4,240 signatures. You need to collect roughly 80 signatures per day. Divide that up among ten friends, and you each need to collect eight signatures each day from now until July 1.

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