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Kirby, Knudson, and Friends Submit Open-Primary Amendment

Remember what I said Tuesday about how any activists interested in launching an initiative petition drive needed to submit their language by Wednesday to avoid a crazy four-month delay? The nice folks at South Dakota Open Primaries did. The group announced yesterday that it has submitted language to the Legislative Research Council for a constitutional amendment to establish open primaries in South Dakota:

That Article VII of the Constitution of South Dakota be amended by adding thereto a NEW SECTION to read as follows:

§ 4. The purpose of this section is to establish open primary elections for the offices of governor, the legislature, all county elective offices, and the United States Senate and House of Representatives.

Primary elections covered by this section shall be open to all candidates and all voters without regard for candidates’ or voters’ party registration or affiliation, or lack thereof. In a primary election covered by this section, all candidates shall be listed on a single primary ballot regardless of political party, and any voter may vote for any candidate regardless of party affiliation or lack thereof. The two candidates receiving the greatest numbers of votes cast shall advance to a general election. If more than one candidate is to be elected to an office, the number of candidates advancing to the general election shall be twice the number to be elected.

Only those candidates properly advancing from the primary election shall appear on the general election ballot; however, the legislature may, by law, establish procedures for replacing candidates who have advanced from the primary election but will not participate in the general election due to death, withdrawal from the race, or disqualification.

Candidates may select a party preference to be listed alongside their names on the primary ballot; the same designation shall appear alongside candidates who advance to the general election. The ballot shall state that a candidate’s indicated party affiliation does not constitute or imply endorsement of the candidate by the party designated, and no candidate for that office shall be deemed the official candidate of any party by virtue of his or her advancement to the general election from the primary election. Endorsement, nomination, or selection by any means by a political party shall be neither necessary nor sufficient for a candidate’s name to appear on any ballot in a primary election covered by this section.

The legislature may pass laws, and the secretary of state and board of elections may adopt rules and regulations, as necessary to implement this section. If any provision of this section or the application thereof to any person or circumstance is held invalid, such invalidity will not affect any other provision or application of the section that can be given effect without the invalid provisions or applications, and to this end the provisions of this section are severable [South Dakota Open Primaries, draft initiated amendment text, submitted to LRC 2022.11.30].

Note that this amendment would affect only the races for which we currently partisan primaries. The amendment would not affect elections for the statewide constitutional offices—Attorney General, Secretary of State, Auditor, Treasurer, Commissioner of School and Public Lands, and Public Utilities Commissioners—whose candidates are nominated at party conventions.

This amendment would affect independent candidates and alternative parties like the Libertarians. Independents currently petition to make the general election ballot; they are not involved in primaries. Alternative parties may nominate candidates for all offices at convention. As I’ve noted in previous analysis of open-primary proposals, this open-primary amendment would override those laws and require new statutes governing the nomination of independents, Libertarians, and other non-major-party participants in elections.

This amendment would might require changing the rule for political parties to maintain their official status. SDCL 12-1-3 definition #12 says that parties retain official status by winning at least 2.5% of the vote for any statewide office. The Libertarians managed that feat this year by running Collin Duprel as the only challenger against Congressman Dusty Johnson and winning 22.6% of the vote. Candidates Tracey Quint for governor and Rene Meyer for auditor also cleared that bar for the Libertarians. If Libertarians, Democrats, or any other party failed to advance any statewide candidates through the open primary and didn’t nominate anyone for the six nominable  (finally, something to rhyme with abominable) constitutional offices, the party would lose official recognition.

None of these issues are issues outweigh the general good that open primaries would do for South Dakota voters. It would allow more voters to participate in choosing their elected officials in races where the candidates are all members of one major party (usually Republicans). Every registered voter, regardless of party affiliation, would simply know, “Hey, there’s a primary—I get to vote!” Letting more people have more chances to vote on who handles governing for them is good.

Chairing this petition drive is Joe Kirby, longtime Sioux Falls Republican and sometime blogger. Former Sioux Falls city councilor De Knudson is also on board. Kirby and Knudson have tried twice before to get voters to approve open primaries: their 2016 Amendment V was rejected by voters 44.5% to 55.5%, while their 2017 petition lacked enough signatures to make the 2018 ballot.

Joining Kirby and Knudson on the South Dakota Open Primaries board are former Republican legislator and Minnehaha County Commissioner Tom Dempster and Democratic politico and ballot question aficionado Drey Samuelson.

If the LRC and Attorney General take their fully allotted time to review these measures, Kirby and friends could have open-primary petitions on the streets by mid-March. If they collect 35,017 signatures from registered South Dakota voters by November 6, 2023, South Dakotans will get to vote on adding open primaries to the state constitution at the 2024 general election.


  1. larry kurtz 2022-12-01 07:45

    Bless their hearts. Brian Bengs running against John Thune instead of against Howdy Doody Dusty Johnson was just plain stupid.

  2. larry kurtz 2022-12-01 07:46

    How many is 35,0167 signatures?

  3. bearcreekbat 2022-12-01 10:42

    Oh dear, what about those voters that want an open primary for state offices but not federal or vice versa – how confusing, just like the Amendment that covered both marijuana and hemp, right? Good thing SD has that pesky “single subject” rule as interpreted by the SD Supreme Court.

  4. O 2022-12-01 11:08

    This proposal allows candidates to declare their affiliation with political parties without those parties being able to have a say in that affiliation? That seems like a wonderful opportunity for some involuntary “tent expansion.” It does seem that a candidate is limited to only one affiliation designation — which seem like a missed opportunity.

  5. Colin 2022-12-01 12:17

    This is Ranked Choice Voting (RCV) under another name. This is nothing that SD needs.

  6. Cory Allen Heidelberger Post author | 2022-12-01 18:06

    I disagree, Colin. Open primaries and ranked choice voting are two very different election methods. RCV picks a winner in one shot through some fun math; an open primary is a straightforward top-two run-off system. RCV uses one ballot; open primary uses two, the primary ballot and the general election ballot. RCV asks voters to think more deeply about and report their preferences; open primary just says, “Pick your favorite,” and incorporates no information in the election about who might be a voter’s least favorite candidate.

    RCV and open primary could produce very different results. Imagine a three-way contest for SD Governor among a Republican, a Democrat, and an independent. The predictable outcome of the open primary would have the Republican and the Democrat finish first and second in the primary and advance to the general, where the Republican would likely thrash the Democrat. RCV would result in the same order of first choices—GOP 1, Dem 2, ind 3. But depending on the first-choice margins separating the candidates and the RCV algorithm used, the independent could win thanks to a majority of Republicans and Democrats marking the independent at their second choice.

    Either the open primary or RCV would make for more interesting, possibly more representative, and definitely more inclusive elections. Offering a plan to include more voters and more information in selecting candidates seems a need in any democracy.

  7. Cory Allen Heidelberger Post author | 2022-12-01 18:10

    Sorry, Larry: I was rounding and typing at the same time. Initiative petitions will need 35,017 signatures for amendments, 17,509 for laws, based on the 350,166 votes cast for Governor last month.

  8. Cory Allen Heidelberger Post author | 2022-12-01 18:19

    BCB, good point about the single-subject rule. Any regular citizen should be able to look at this initiative and say that it deals with a single subject: election law. But anybody who wants to thwart the will of an electorate that would pass this initiative need only find a semi-skilled lawyer to go to court and shout, “State and federal offices are separate subjects!” or “Primary and general elections are separate subjects!” or “Voting for candidates and filling vacancies after the primary are separate subjects!” or “Casting votes and putting candidates’ party preferences on the ballot are separate subjects!”

    Every subject consists of multiple sub-subjects. The single-subject rule is infinitely malleable and thus a terrible, unpredictable standard by which to allow or disqualify ballot measures.

    This initiative addresses one subject, the business of electing officials. There are many aspects to electing officials, and many different ways to do it. Some people may want to apply open primaries to more offices, some to fewer than Kirby et al. propose, but hey, let’s have that debate. Let’s not restrict the topics voters can debate and decide to only the most ridiculously simple policies.

  9. Cory Allen Heidelberger Post author | 2022-12-01 18:30

    O, I am intrigued by the “party preference” option. “Party preference” appears to be different from formal party registration. Under the current nomination process, an independent could register as a Democrat to take advantage of the lower signature threshold necessary to qualify for the ballot but declare a party preference of “independent” for the ballot.

    The verb “may select” suggests that this initiative gives candidates a right not to choose a party preference and thus to be listed with an R, D, I, L, or any other label on the ballot. I wonder how voters would respond to a contest between two primary candidates who list a party and two candidates who don’t?

  10. John 2022-12-01 20:01

    Slightly off topic . . . but Biden’s note to the corporate democrats to dump Iowa and New Hampshire primaries is welcome. Overdue.
    A better centrist bell weather could be Missouri – it’s a centrist, a mix of urban/rural, regional (north/south/midwest/plains(west)).

    The DNC ought consider that with 50 states, holding 5 primary votes consisting of 10-states at 2-week intervals. Each primary having a mix of urban/rural/regional. Get the primaries over in 10 weeks, not 6 months. Begin after Memorial Day and move on after the 4th of July, Rotate the mix every 4 years. No one state or mix is special. Dirt doesn’t vote, but the skewed Electoral College does so the corporate democrats cannot sit around back slapping over winning the worthless popular vote and lose the EC and presidency.

  11. All Mammal 2022-12-02 12:44

    I would surely appreciate the ability to have a say in electing my county’s sheriff. As an [I], I have not gotten the opportunity to toss my pebble into the primary in, gosh, a coon’s age.

  12. John Dale 2022-12-03 14:35

    Dumb for Republicans. Smart for everybody else until everybody else is in power, then it is dumb for them.

    Our system is really dumb sometimes.


  13. Scott McGregor 2022-12-04 22:42

    Dumb idea for South Dakota. This should ensure most often that 2 Republicans will advance to the general election for the major elective offices. If it were in effect for the 2024 gubernational election in our state, the two general election contenders would likely be current Lt. Governor Larry Rhoden and incoming Attorney General Marty Jackley. What, no Democrat you say? I’ll bet that’s the point. It is also doubtful a state by law can mandate how parities select their candidates. Since political parties are private entities, not creatures of the state or federal government, they are entitled to freedom of association protection under the First Amendment to the United States Constitution unless they themselves otherwise consent. Why can’t people who put together initiatives pay attention to the Constitution? It would save us all a hell of a lot of trouble, wasted time and money.

  14. Cory Allen Heidelberger Post author | 2022-12-05 05:07

    Scott is wrong on every count.

    1. An open primary does not guarantee that 2 Republicans will advance to the general election. Only the failure of Democrats, Libertarians, independents, and others to offer viable non-Republican candidates will guarantee that outcome. And the ultimate outcome, an easy win for Republicans in November, is not unique to the open primary and thus is not a compelling argument against this system.

    2. There is no gubernatorial election in 2024.

    3. If this initiative passes and sends the 2026 gubernatorial election to an open primary, and if the Republicans do field two powerful candidates, they’ll split the primary vote and make it easy for a good Democrat to win second place, or maybe even first, and advance to the general.

    4. The point of this initiative is not to guarantee that Democrats don’t appear on the general election ballot. Sponsors Kirby, Knudson, Dempster, and Samuelson are acting on principle to promote better elections, without regard to specific outcomes for specific parties or candidates.

    5. State law dictates how parties select their candidates right now, via the closed primary, convention, and the process for filling vacancies on the ballot. This initiated amendment would actually override a lot of state laws and give parties more freedom to nominate their official candidates in the open primary.

    6. This law does not violate anyone’s freedom of association. Right now, all South Dakota voters can “associate” themselves with any political party by declaring their affiliation on their voter registration form. The parties have zero say over that declaration. The right to declare one’s political affiliation does not violate the parties’ freedom of association; giving the parties some legal right to prevent people from declaring themselves to be Republicans, Democrats, etc. would actually violate people’s freedom of speech. Likewise the right individuals have now to circulate nominating petitions. I could change my official registration from D to R and circulate a nominating petition as a Republicans. The GOP has no right to prevent me from doing so. If I can trick enough Republicans into signing my nominating petition, then I’m on the ballot as a Republican, and I have committed no violation of law or the First Amendment. If I win the election and continue to smirkingly deem myself a Republican, even as I caucus with Democrats and approve liberal legislation, the GOP is still free to declare that I’m not one of their party leaders and to exclude me from their party functions. This amendment works the same way: candidates can exercise their First Amendment right to declare themselves to prefer one party or no party, and parties can exercise their right to associate with those candidates or not.

  15. Cory Allen Heidelberger Post author | 2022-12-05 05:09

    If your arguments against this amendment are phrased in terms of benefits for specific political parties, then you are missing the point. Actually, you are proving the sponsors’ point, that our election laws should favor voters, not political parties.

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