Libertarian blogger Ken Santema finds a new glitch in the petition reforms proposed by the state Board of Elections. He says Senate Bill 69, which moves the primary petition circulation period up one month to December 1 to the last Tuesday in February, violates the constitution by also setting the deadline for filing petitions to form a new party on that last Tuesday in February.
For details, Santema turns to Richard Winger at Ballot Access News:
These state officials probably don’t remember that in 1984, South Dakota’s Attorney General and Secretary of State admitted that a February petition deadline for a newly-qualifying party is unconstitutional, and the legislature then moved that deadline to April. This admission was made after the South Dakota Libertarian Party sued the Secretary of State. That case is reported at 579 F Supp 735 (1984). However, the only decision the judge had to make in that case was that the wording on the party petition was unconstitutionally restrictive. The judge didn’t need to adjudicate the part of the case that challenged the February deadline, because the state admitted it was too early [Richard Winger, "South Dakota Bill Moves Deadline for Newly-Qualifying Party Petition from March to February," Ballot Access News, 2015.01.20].
We bumped that deadline back from last Tuesday in April to last Tuesday in March in 2007.
Whether case law actually prohibits the earlier February deadline for party-formation petitions, Senate Bill 69 and the other bills in the petition reform package do citizens' opportunity to get themselves and their parties on the ballot. Mr. Santema says that disadvantage is enough to sink the whole reform package in his book:
I still have more research to do on this topic. But right now it appears the burden placed on ballot access in SB 69 overwhelms any good intentions of the bill. Yes, the nominating petition procedures in South Dakota need to be overhauled. However at this time it appears the wrong path is being taken. As a short-term fix maybe amending the bill to remove the new restrictions on newly-qualifying parties would be appropriate. But it might be time to realize that true reform may not be possible during the 2015 legislative session. Instead perhaps a workgroup or summer study should be formed to take a deep look at election law in SD and in other states for a comparison. Then come to the 2016 legislature with a comprehensive solution that would fix the problems experienced in the 2014 election while concurrently ensuring the first and fourteenth amendment protections are properly observed [Ken Santema, "Ballot Access Issues with SB 69," SoDakLiberty, 2015.01.20].
If we need petition reform, perhaps this question of ballot access makes my five amendments, including moving the deadline to the first Tuesday of March, all the more essential to passing the current package of legislation. We can't move the petition deadline back to April, since federal law demands we have absentee ballots ready for military voters 45 days before the primary. We could adopt the Lanny Stricherz plan to move the primary into summer so we could circulate petitions in May.
But if we can't move dates, then the best we may be able to do is make petitions electronic (complete with official circulators' tablet apps and online signatures!) so that we can submit petitions the day before ballot printing and instantly check signatures against the voter registration database. (Given that Secretary Krebs pulled out the wires on the campaign finance reporting system this morning, now might not be the time to suggest a whole new electronic form submission system... but I'm willing to take my chances! iPetitions, Secretary Krebs! What do you say?)
The Senate Local Government Committee hears Senate Bill 68 tomorrow, Wednesday, at 7:45 a.m. Central. Senate State Affairs takes up the rest of the petition reform package, SB 67 and the troubling SB 69 shortly afterwards, at 10:00 a.m.