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:
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.