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Jackley, Gant Seek Dismissal of Myers-Hubbel Ballot Lawsuit

On Thursday, Attorney General Marty Jackley filed a motion in federal court to dismiss independent gubernatorial candidate Mike Myers's lawsuit against Secretary of State Jason Gant. Myers wants Secretary Gant to put Myers's withdrawn running mate Caitlin Collier with his desired replacement, Lora Hubbel, on the November ballot. Secretary Gant refuses to do so, claiming state law does not authorize such a replacement for independent candidates.

I find that reasoning selective and specious. We could probably identify a number of actions Secretary Gant has taken in the interest of solving problems and helping elections run smoothly that aren't explicitly stated in statute but which make perfect sense.

AG Jackley, alas, is backing Secretary Gant's illogic with more illogic:

The state's lawyers argue that current law allows party-endorsed candidates a chance to replace a nominee through a vote of the party. Without a nominating convention or a party vote on Collier's replacement, allowing Myers to substitute Hubbel would "discard the public's representation in the political process and replace it with the will of one individual" [David Montgomery, "Jackley Wants Judge to Dismiss Mike Myers'[s] Lawsuit," that Sioux Falls paper, 2014.08.08].

Statute doesn't spell out any public representation in the nomination of a lieutenant governor any more than it spells out the process for replacing an independent running mate. Yet where Secretary Gant says the absence of the former binds him to inaction, AG Jackley conjures the former ex nihilo as legal grounds for his defense of Gant.

As I have laid out, discarding the public's representation in the political process happens under Gant and Jackley's interpretation: by maintaining the fiction of Collier's running-mate status on the ballot, Gant denies Myers the chance to select and all voters the chance to directly approve his choice for lieutenant governor. If he would win the election, Myers would be forced to submit Hubbel for confirmation to the Legislature, either house of which could reject the will of the voters. The Attorney General's own argument should compel the Secretary to act in the interest of the voters and truth and print Hubbel's name next to Myers's on the ballot.

Gant himself acknowledges that placing Hubbel on the ballot poses no practical problem:

"Should the judge decide to allow the switch, that will be fine," Gant said. "There's plenty of time" [Montgomery, 2014.08.08].

Gant's predecessor, Chris Nelson, testified to the Legislature in 2009 that the state has no compelling interest in locking in the names of independent candidates before August:

At some point, an independent’s going to challenge that.... Their question to the court is going to be, what is the state’s compelling interest for compelling ... an independent candidate to file so early? ... The state doesn’t need to know who independent candidates are until August, when we begin putting the ballot together [Secretary of State Chris Nelson, Legislative testimony on 2009 HB 1234, February 2009; quoted in David Montgomery, "S.D. Independents Might Have Case for Ballot Leniency," that Sioux Falls paper, 2014.05.06].

Without a compelling reason to keep Myers from replacing his running mate, Gant is denying Myers a right that other party candidates enjoy. Recall that Collier officially withdrew on June 12, and Myers officially announced Hubbel as his second choice on July 8. If either GOP Lieutenant Governor Matt Michels or Democratic running mate Susy Blake had withdrawn and been replaced on that timeframe, Secretary Gant would not have batted an eyelash.

SDCL 12-7-1, which uniquely requires independent gubernatorial candidate to file the names of their running mates before they circulate petitions, and SDCL 12-6-56, which uniquely permits parties to replace withdrawn partisan candidates, work together to restrict access to the ballot for independent candidates without basis in compelling state interest. The 1989 El-Amin v. State Board of Elections of Virginia decision says that sort of discrimination is unconstitutional. The 1980 Anderson v. Firestone decision followed similar reasoning, overruling a similar combination of extra statutory burden on independents and absence of statute making clear a replacement process for independent candidates. In Anderson, a federal court ordered Florida to accept the withdrawal of independent presidential running mate Milton Eisenhower and print on the ballot John Anderson's replacement pick, Patrick Lucey.

Precedent and common sense say Mike Myers should have the same right to replace his running mate as partisan candidates enjoy. Neither Secretary Gant nor Attorney General Jackley has offered a compelling state interest in denying Myers and the voters the opportunity to see Lora Hubbel on the ballot as independent candidate for lieutenant governor.

p.s.: Even if the state prevails in quashing Myers's lawsuit, Secretary Gant still can't print Caitlin Collier's name on the ballot. Collier followed the procedure laid out in SDCL 12-6-55 for candidates to withdraw, and that statute says, "No name so withdrawn shall be printed upon the ballots to be used at such election."


  1. Tim 2014.08.09

    Could this whole thing just be the state GOP slapping Lora Hubbel back into her place? She was a republican at one time you know. I'll keep saying it, until voters force them to change the way this state is ran, they won't.

  2. jerry 2014.08.09

    Jackley is consigliere to the boss, Daugaard who in turn, kisses the ring of Rounds. What a den of thieves.

  3. larry kurtz 2014.08.09

    Larry Piersol: call me.

  4. larry kurtz 2014.08.09

    Marty just settled a lawsuit for the state with one of his campaign donors: conflict of interest is just so meaningless in a failed, corrupt state like South Dakota.

  5. jerry 2014.08.09

    I guess South Dakota does not have a US Attorney.

  6. Tim 2014.08.09

    Jerry, we have one sitting at a desk collecting a paycheck, not sure what else he does. Wags his finger at the state republican party and tells them, don't make me get up from this desk!

  7. mike 2014.08.09

    Off topic but Kristi Noem is using her twitter account to promote Democrat Senator Chuck Welke at the expense of her old Republican district seatmate Brock Greenfield.

    This deserves a blog post all of it's own. I wonder how Greenfield feels about this? Welke is her senator after all so maybe she is throwing her support to him??? It's unsolicited on Welke's part and it comes off as a slight to Greenfield and looks like Greenfield was thrown under the bus so Noem could get a quick bipartisan tweet out.

    (Why does anyone care if Hubbel is on the ticket? She's not the main option. Let her on.)

  8. Deb Geelsdottir 2014.08.09

    Chuck was my classmate in college. He was always a good man. Greenfield? Not at all. I watched him in action (figure of speech) and he was an arrogant bully.

  9. mike from iowa 2014.08.10

    In Joisey and SoDak,suspicious deaths of political figures rate deputy coroners attention. There is a suspicious conspiracy right there.

  10. caheidelberger Post author | 2014.08.10

    Larry, is that donor lawsuit settlement in the news? Did Jackley issue a press release? Documents?

  11. JeniW 2014.08.10

    My question about the settlement is how will the money be used, or who will benefit from it?

  12. caheidelberger Post author | 2014.08.10

    Mike, I'll deal with Kristi's Welke pic in a moment. But I like the question you raise about whether anyone should be bothered by having Hubbel on the ballot.

    Suppose Gant went with my interpretation and said, "The law doesn't say I can't replace Collier with Hubbel on the ballot, so I'm going to do it." Who would sue? One political friend of mine suggests the Dems and GOP would, but I'm not sure they'd bother.

    If I'm in charge of Team Wismer and the SDDP, I say bring Hubbel on! Right now, Myers has a known and likable Democrat next to his name, which could pull some votes away from Wismer. Hubbel is a known radical conservative who would repel Democrats. The effect may be miniscule, but Hubbel is a plus for Wismer.

    If I'm in charge of Team Daugaard and the SDGOP, I shrug. Keeping Lora off the ballot doesn't even score well as petty revenge for her run against Daugaard and other apostasy. My Republican perspective (I emphasize, this is not how I think; this is how I think Dick Wadhams would think) would be, "Let her on the ballot. Let her tie her name to Myers. Let her embarrass herself. Let it be on the record that she betrayed our party and has no place at our table." The best way to marginalize a train-wreck candidate (e.g., Annette Bosworth) is to leave her on the ballot and let her talk.

    Then again, the GOP might think along Wismer lines that, just as Hubbel could kick some attentive voters away from Myers and back to Wismer, Hubbel could recapture some Tea Party voters who would vote against the current regime but can't bring themselves to mark an X next to a Democrat like Collier.
    Possible... but let's get serious: would more than a hundred voters across the state both (a) know the difference between Collier and Hubbel and (b) be swayed by that factor alone in their gubernatorial vote?

    For both parties, a lawsuit would simply be money wasted. Dems don't have money to throw around; they should spend every penny on putting gas in Wismer's tank, buying ads, and organizing phone banks and other GOTV. Republicans have votes to spare, and Myers hasn't shown the organizing muscle to break 10%, so why spend money on a lawsuit that won't do much to affect the election outcome?

  13. larry kurtz 2014.08.10

    Jeni: no doubt none of the money will go into the general slush fund. That Marty represents the tribes in any way should make Democrats sore afraid.

  14. mike 2014.08.10

    I agree with you Cory. Gant probably should have interpreted the law as you stated and allowed her on. Laws should not be designed or interpreted to punish someone.

    Too me this has more to do with Gant not liking Hubbel than anything else. I bet if it was Joe Shmoe he would have replaced Collier. Myers needs to team up with Howie so he can get some signs up across the state.

  15. jerry 2014.08.10

    mike from iowa, ask yourself these questions. Where is Joisey located in respect to NYC? Second question Where has our head of state been? I am certainly not making an accusation here, just a geographical question that has to do with politicians.

    It is always so coincidental that whenever there is an impropriety involving a governor, some involved in that investigation turn up very dead by suicide. Just wondering, no pills, no ropes, always with a gun. Hell, you can even put a former governor of Arkansas in that mix as well.

  16. MJL 2014.08.10

    "Gant's predecessor, Chris Nelson, testified to the Legislature in 2009 that the state has no compelling interest in locking in the names of independent candidates before August:" Imagine that, our GOP legislature refusing to listen to the experts when it comes to making policy. Shocking!

  17. mike from iowa 2014.08.10

    Jerry,I thought I read some handwritten notes on Benda's death certificate that deputy coroners are not required to take death scene investigation classes. Anyone no if that is true?

  18. Tara Volesky 2014.08.10

    Back in April during Hubbel Myers press conference on EB-5, Richard Benda and corruption in SD, Lora Hubbel explained the coroners report. Lora if you read this, can you explain this to Jerry? Thanks.

  19. mike from iowa 2014.08.10

    That is the page I was referring to. Thank you very much,JeniW.

    I'd certainly like to think in a high profile case like this,someone with considerable experience would be in charge,but with the way Keystone wingnuts run things,maybe that is exactly what they didn't want.

  20. caheidelberger Post author | 2014.08.10

    The death certificate originally posted here by David Montgomery is easier to read. It does not include the notes taken by whatever interviewer (I assume Paul Shannon of the Tea Party Tribune) cluttered up the original image.

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