Last updated on 2014.08.09
Secretary of State Jason Gant has refused to place Lora Hubbel on the November ballot. Yesterday Hubbel received a letter from Secretary Gant, dated July 18, stating that there is no statutory mechanism by which his office can accept Hubbel's certification of her status as Myers's running mate nor recognize the withdrawal from the ticket of the candidate Hubbel would replace, Caitlin Collier.
The procedures for the nomination of independent candidates for Governor and their running mates are covered in South Dakota Law (SDCL) Chapter 12-7. SDCL 12-7-1 provides in part "An independent candidate for Governor shall certify the candidate's selection for lieutenant governor to the secretary of state prior to the circulation of the candidate's nominating petition. The candidate and the candidate's selection for lieutenant governor shall sign the certification before it is filed." In this case, Ms. Collier was properly certified before the circulation of the petition. Because the time for petition circulation and the filing deadline have passed, there is no statute allowing certification of another independent candidate for lieutenant governor. Additionally, an independent candidate for lieutenant governor cannot simply drop off the ballot. Article IV section 2 of the South Dakota Constitution requires that the governor and lieutenant governor be jointly elected.
If Michael Myers is elected as Governor he may appoint a new lieutenant governor subject to confirmation by majority members [sic] of each house of the legislature pursuant the South Dakota Constitution Article IV section 6 [Secretary of State Jason Gant, letter to Lora Hubbel, 2014.07.18].
I recognize the need for the secretary of state to be a stickler for rules, and Secretary Gant has demonstrated that he can be a stickler when he wants to be. But in this case, Secretary Gant is needlessly punishing Hubbel (a known bête noire among Gant's Republican friends), Myers, and the voters. No votes have been cast. No ballots have been printed. No dispute exists over the practical facts of Collier's withdrawal or Myers's selection of Hubbel. No fraud has been committed by anyone in seeking to place Hubbel's name on the ballot next to Myers's, and no harm will be done to anyone by the stroke of the pen that would align the November ballot with reality.
Quite the opposite: by refusing to place Myers's running mate on the ballot, Secretary Gant is disenfranchising the thousands of citizens who will hear Myers and Hubbel campaign and wish to vote for Myers and Hubbel in November. While citizens voting Republican or Democrat get to choose their lieutenant governor by direct vote, Secretary Gant is pre-empting the will of Hubbel voters and subjecting their choice to the will of a partisan Legislature.
As with many other electoral laws, the statute Secretary Gant cites discriminates against candidates who are not members of recognized political parties. Independent Myers had to get Collier to file her status as his running mate last winter, before he could circulate his petitions. Republican Governor Dennis Daugaard and his Democratic challenger, Rep. Susan Wismer, did not have to name their running mates until June. Independent running mates apparently have no right to withdraw, and Independent gubernatorial candidates have no right to replace. If either Republican running mate Matt Michels or Democratic running mate Susy Blake decided to withdraw today or during the next two weeks, statute would clearly permit Daugaard and Wismer to name replacements through August 12.
Keeping Lora Hubbel off the ballot serves no compelling state interest. The question now is whether the Myers-Hubbel campaign will take that argument to court. Challenging statutory discrimination and disenfranchisement could win Myers more support among Independents who are sick of the big-money parties rigging the system. Myers is a law professor, so he could argue his own case and minimize the impact on his cash-strapped campaign. And not that anyone should use the courts for publicity, but one could argue that fighting a high-profile court battle against the Secretary of State could bring the Myers-Hubbel campaign more positive publicity for the dollar than any other investment of their sparse campaign resources.
But time is tight: Myers has three weeks to make these arguments in court. After that, the chances of a judge raising a stop sign to printed ballots (even false ballots) diminish greatly, and we would have to wait for a legislative fix.