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Myers v. Gant

United States District Court, D. South Dakota, Southern Division

September 9, 2014

MICHAEL J. MYERS, Plaintiff,
v.
JASON M. GANT, in his official capacity as Secretary of State for the State of South Dakota, Defendant

Page 659

[Copyrighted Material Omitted]

Page 660

For Michael J. Myers, Plaintiff: Edward K. Welch, LEAD ATTORNEY, Sioux Falls, SD.

For Jason M. Gant, in his official capacity as Secretary of State for the State of South Dakota, Defendant: Richard M. Williams, LEAD ATTORNEY, Ann F. Mines, Attorney General of South Dakota, Pierre, SD.

Page 661

MEMORANDUM OPINION ON MOTION FOR PRELIMINARY INJUNCTION AND MOTION TO DISMISS

Lawrence L. Piersol, United States District Judge.

This matter is before the Court on a motion for a preliminary injunction filed by Plaintiff Michael J. Myers (Myers), and a motion to dismiss the complaint filed by Defendant Jason M. Gant (Gant). Argument on both motions was heard on August 18, 2014, in Sioux Falls, South Dakota. The Court orally announced that the motion for a preliminary injunction was granted and that the motion to dismiss the complaint was denied. The Court set forth on the record a summary of the basis for its rulings, and issued a short order on the motions. For each of the reasons stated by the Court on the record, and as follows, Myers' motion was granted and Gant's motion was denied.

FINDINGS OF FACT

On January 7, 2014, Myers declared his intention to run as a non-party independent candidate for Governor of South Dakota in the November 2014 election. On January 9, 2014, Myers and Caitlin F. Collier (Collier) filed a form with the Secretary of State entitled " Independent Candidate for President or Governor Declaration of Candidate and Certification of Running Mate." This form stated Myers intention to run for governor and certified Collier as his lieutenant governor candidate, Collier, in turn, certified under oath that she agreed to serve as a candidate for lieutenant governor. Next, Myers circulated his nominating petition.[1] Collier's name was not required to and did not appear on the Myers' nominating petition. On April 23, 2014, Myers submitted his nominating petition with more than the required number of signatures of registered voters to the South Dakota Secretary of State's Office, which approved Myers' nomination as anon-party independent candidate for governor.

On or before June 12, 2014, Collier informed Myers that she needed to withdraw from the race for personal reasons. On June 16, 2014, the Secretary of State's Office received a notarized form from Collier entitled " Candidate's Request to Withdraw Nomination."

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On July 8, 2014, Myers announced at a press conference in Sioux Falls his nomination of Lora Hubbel to replace Collier as his running mate. That same day, Hubbel signed and submitted the bottom portion of an " Independent Candidate For Governor Declaration of Candidate and Certification of Running Mate" form to the South Dakota Secretary of State's Office to get her name placed on the election ballot as Myers' running mate.[2] This notarized form was received by the South Dakota Secretary of State's Office on July 15, 2014.

On July 18, 2014, the Secretary of State's office notified Hubbel and Myers by letter that Hubbel could not be certified as the candidate for lieutenant governor and Collier could not be removed from the ballot. According to Gant's letter, there is no South Dakota law allowing a nonparty Independent gubernatorial candidate to certify a replacement candidate for lieutenant governor after the candidate has met the deadline for circulating and filing his or her nominating petition.[3] Gant also stated that Collier cannot simply drop off the ballot because Article IV section 2 of the South Dakota Constitution requires that the governor and lieutenant governor be jointly elected. Gant believes South Dakota law requires naming Myers and Collier as the non-party candidates for governor and lieutenant governor on the November 2014 general election ballot even though Collier has withdrawn from the race.

South Dakota law allows party nominees for governor, such as Republicans and Democrats, to fill a vacancy created by the death or withdrawal of their running mate up until the second Tuesday in August, which was August 12, 2014, of this year's election cycle. See SDCL § 12-8-6. As with the nomination of a lieutenant governor, the replacement of a lieutenant governor candidate must be done by party vote and nomination. If a vacancy occurs for lieutenant governor, a statewide office, the State Party Central Committee is charged with the responsibility of replacing that nominee. SDCL § 12-6-56. " Vacancies filled by the State Central Committee shall be by unit representation, each county casting the number of votes cast in that county at the last general election for that party's candidate for Governor." SDCL § 12-6-57. According to Gant, this process ensures the nomination of a replacement for a party candidate for lieutenant governor is accomplished by the voters through their representatives within the party system. Gant contends that Collier's nomination was secured by the voters of South Dakota after certification by Myers and Collier that Collier agreed to serve as Myers' choice for lieutenant governor. Replacing Collier with Hubbel, Gant believes, would undo the will of over 3,000 voters who signed Myers' nominating petition with the expectation that Collier would be his running mate, and would disenfranchise those voters at the general election by denying them the opportunity to vote for the individual they expected to be the lieutenant governor candidate.

Myers claims that the failure to provide equal ballot access to non-party candidates imposes an unconstitutional burden on his First and Fourteenth Amendment rights of free association by effectively preventing him from replacing his running mate.

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CONCLUSIONS OF LAW

I. Motion to Dismiss

A. Rule 12(b)(7)

Gant first argues that Hubbel and Collier are " necessary parties" because these proceedings affect their rights. Thus, Gant maintains, Myers' failure to join these parties warrants dismissal of this action ...


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