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SB 69 May Unconstitutionally Limit New Party Ballot Access; How to Fix?

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.


  1. Kurt Evans 2015.01.20

    On a related note ...

    The reason Mike Myers had to file a lawsuit to change his running mate in 2014 is that no legal provision existed to let him do so. The reason for that, which South Dakota's political journalists have completely ignored, is that independents never used to have to finalize their candidacies until the beginning of August, on the same date as the parties.

    When I ran for Congress as a libertarian-leaning independent in 1996, my petitions weren’t due until August 6. Since then I believe our Republican state legislature has moved the date forward at least three times: first to two weeks after the primaries, then to the day of the primaries, and finally to the current date in April.

    When the legislature first moved the date from August to June, Ralph Nader sued and won, forcing the state to move the deadline back to August, but the ruling only applied to presidential candidates.

    When the legislature tried to move the date from June to April in 2009, Secretary of State Chris Nelson warned, “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?”

    Nelson added, “The state doesn’t need to know who independent candidates are until August, when we begin putting the ballot together.” The 2009 bill, which was cosponsored by Jason Gant, was defeated.

    In 2012, the same bill was reintroduced. Secretary of State Jason Gant testified in support, and this time it passed. Shantel Krebs voted in favor of the bill.

    There are clear legal precedents declaring independent and minor-party early petition deadlines invalid. Rather than codifying a new law that merely allows independent candidates for governor to change their running mates, the ethical approach would be to return the filing deadline to its original date in August.

    The interest in an earlier date for independent candidates is not a state interest but a partisan one. It troubles me that major-party candidates can withdraw and be replaced in mid-August, but independent candidates are now required, for no apparent reason beyond the whim of power-hungry Republican legislators, to file their petitions months earlier.

  2. grudznick 2015.01.20

    Mr. Gant hates Mr. Nelson, it is clear. Much of his attacks over the past 4 years have been backhand slaps at Mr. Nelson. Slap slap take that Mr. Nelson, Mr. Gant would say. I believe Ms. Krebs will undo much of the wronging of the ship that probably took place.

    Then she will put the squeeze on weed-toking candidates and make them toe the line of the law.

  3. Kurt Evans 2015.01.20

    "Grudznick" wrote:
    >"Then she will put the squeeze on weed-toking candidates and make them toe the line of the law."

    If you're trying to suggest I've ever used an illegal drug, you're wrong.

  4. grudznick 2015.01.20

    Not you, Mr. Evans. Others.

  5. Anne Beal 2015.01.20

    For all the tinkering with dates, the reality is that if you want to run for any office you need to start planning now.
    It's hard to take seriously any candidate or party that falls out of bed one morning in August and decides to run for office.

  6. caheidelberger Post author | 2015.01.21

    John Thune didn't announce his 2004 run until January 2004. Kristi Noem didn't announce her 2010 run until later in February 2010. Independents shouldn't have to announce until they see the results of the primary and realize that the parties aren't offering good options.

    And everyone, voters and candidates alike, would benefit from a shorter election season. Let's change the mindset and change the law: petitions in spring, primaries/nominations in the summer (or the day after the State Fair?). Anne, would you like a different reality?

  7. Nick Nemec 2015.01.21

    That's true Anne and is the candidate's or party's problem, it is really no concern of the State.

Comments are closed.