United States District Court, D. South Dakota, Southern Division
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.
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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
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.
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.
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."
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.
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)).
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).
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)).
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 ...