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Libertarian Party of South Dakota v. Krebs

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

June 9, 2016

LIBERTARIAN PARTY OF SOUTH DAKOTA; KEN SANTEMA, State Chair of the Libertarian Party of South Dakota; BOB NEWLAND; CONSTITUTION PARTY OF SOUTH DAKOTA; LORI STACEY, State Chair of the Constitution Party of South Dakota; and JOY HOWE, Plaintiffs,
SHANTEL KREBS, in her official capacity as Secretary of State of the State of South Dakota; and MARTY J. JACKLEY, in his official capacity as Attorney General of the State of South Dakota, Defendants.



         Plaintiffs bring suit against defendants seeking in part a declaratory judgment that South Dakota’s ballot access laws for new political parties are unconstitutional. Defendants move for summary judgment, arguing that South Dakota’s ballot access laws place reasonable and nondiscriminatory restrictions on political parties. The court denies defendants’ motion.


         To be a political party in South Dakota, the party’s candidate for governor in the last gubernatorial election must have won at least 2.5% of the votes cast. SDCL 12-1-3(10). If a party does not meet the 2.5% requirement, it must go through the process outlined in SDCL 12-5-1 that discusses the organization and dissolution of a political party. See SDCL 12-5-1. Under the statute, a new political party may gain state recognition by filing with the South Dakota Secretary of State a written declaration that contains the party’s proposed name and a brief statement of the party’s principles. Id. The declaration must be signed by "at least two and one-half percent of the voters of the state as shown by the total vote cast for Governor at the last preceding gubernatorial election." Id. A voter may sign the declaration at any time as long as the signature is not more than a year old at the time of filing. Id. For a party to appear on the June primary ballot, the declaration must be submitted by the last Tuesday in March at five p.m. Id.

         In 2012, the Libertarian Party and the Constitution Party met the March deadline and filed valid declarations with the Secretary of State. Docket 19 at 5. This meant both parties appeared on the primary and general election ballot in 2012 and 2014. During the 2014 general election, neither party had candidates for governor, so neither party received the 2.5% of votes necessary to maintain its political party status. Docket 28 at 2. Because both parties seek participation in the 2016 South Dakota primary election, this year both parties filed new declarations with the South Dakota Secretary of State. Docket 41 at 1-2. Based on the procedures set out in SDCL 12-5-1, declarations were due March 29 and needed to be signed by 6, 936 voters. Docket 28 at 5. Only the Constitution Party met both requirements. Docket 41 at 1-2. Both parties, however, have met the filing requirements of SDCL 12-5-1 in the past. The Libertarian Party achieved political party status in 1994, 1996, 1998, 2000, 2002, 2004, 2006, 2012, and 2014. Docket 19 at 5. The Constitution Party achieved political party status in 2004, 2006, 2008, 2010, 2012, and 2014. Id.

         After defendants filed their answer, plaintiffs learned that new political parties may select some of their general election candidates through a state convention instead of a primary vote. Docket 33 at 1-5. In their answer, defendants explained that SDCL 12-5-21 allows new political parties to nominate via state convention candidates for the following positions: lieutenant governor, attorney general, secretary of state, state auditor, state treasurer, commissioner of school and public lands, public utilities commissioner, national committeeman of the party, national committeewoman of the party, and presidential electors. Docket 21 at 3; SDCL 12-5-21. Under this procedure, the party would need to file its declaration in time to give the Secretary of State 30 days’ notice of the time and place of the party’s convention. Docket 26 at 3-4; SDCL 12-5-17. Because a party must hold its convention in time to certify its nominees with the South Dakota Secretary of State by the second Tuesday in August (SDCL 12-5-22), a new political party in 2016 could file its declaration on July 10 and still have its candidates for offices identified in SDCL 12-5-21 placed on the general election ballot. See Docket 26 at 3. This means new political parties potentially have two deadlines for filing their party’s declaration: March or July. Plaintiffs assert this is a new and different interpretation of SDCL 12-5-1 than had been followed previously by South Dakota’s Secretaries of State. Docket 33 at 2. Richard Winger explains in affidavits submitted by plaintiffs that 41 other states authorize previously unqualified parties to place all its nominees on the general election ballot without a primary. Docket 40 at 1. He also states that no other state sets a different deadline for ballot access for attorney general or lieutenant governor than governor. Docket 40 at 2. He describes this process as "irrational." Id.

         Plaintiffs initiated this action on June 15, 2015. Docket 1. On January 26, 2016, the court granted plaintiffs’ motion to amend the complaint and denied defendants’ motion to dismiss the case or change venue. Docket 18. Plaintiffs filed their amended complaint on January 28, 2016. Docket 19 at 4. Defendants now move for summary judgment, and plaintiffs oppose the motion.


         Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party can meet this burden by presenting evidence that there is no dispute of material fact or by showing that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary judgment, "[t]he nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ " Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).

         Summary judgment is precluded if there is a factual dispute that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes of a summary judgment motion, the court views the facts and the inferences drawn from such facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).


         The right to vote holds a sacred place in our nation’s history. "It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’ " Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Williams v. Rhodes, 393 U.S. 23, 31 (1968) (internal citation omitted). On the other hand, the right to vote is not absolute. The states hold a broad power to regulate the time, place, and manner of elections. Green Party of Ark. v. Martin, 649 F.3d 675 (8th Cir. 2011) (quoting U.S. Const. art. I, § 4, cl. 1; Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008)). "Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections . . . ‘if some sort of order, rather than chaos, is to accompany the democratic process.’ " Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).

         Because of the inherent tension between the individual’s right to vote and the state’s power to regulate elections, the Supreme Court has set forth a balancing test that considers the interests of both the voter and the state. Id. at 432-34. As explained by the Eighth Circuit Court of Appeals, a court analyzing ballot access laws must:

weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s ...

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