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Libertarian Party of South Dakota v. Krebs

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

December 19, 2017

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, SECRETARY OF THE CONSTITUTION PARTY OF SOUTH DAKOTA; Plaintiffs,
v.
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.

          ORDER

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiffs brought this action naming Shantel Krebs in her official capacity as Secretary of State of South Dakota and Marty Jackley in his official capacity as Attorney General of South Dakota as defendants. Plaintiffs allege two constitutional challenges to South Dakota's ballot access laws. Docket 85. Pending before the court are the parties' cross motions for summary judgment on both constitutional claims. Docket 97; Docket 102. Because there are material facts in dispute, this court denies both motions for summary judgment.

         PROCEDURAL BACKGROUND

         Plaintiffs initially brought this suit on June 15, 2015, seeking a declaratory judgment that the deadlines established in SDCL § 12-5-1 impose unreasonable restrictions on new political parties seeking to participate in South Dakota elections and thus violate their First and Fourteenth Amendment rights. Docket 1; Docket 19. Defendants first moved for summary judgment on March 3, 2016, arguing that South Dakota's ballot access laws place reasonable and nondiscriminatory restrictions on political parties. Docket 25. In denying defendants' motion, this court reasoned that South Dakota's ballot access laws impose a severe burden on third parties and their candidates and found that defendants had not identified a compelling reason for the disparate treatment of candidates running for political office in South Dakota. Docket 43.

         On July 15, 2016, defendants moved for summary judgment a second time, arguing that additional grounds uncovered in discovery supported their motion. Docket 44. Plaintiffs moved for summary judgment on July 23, 2016 (Docket 54), and moved for a permanent injunction on July 25, 2016. Docket 60. This court denied plaintiffs' motion for a permanent injunction (Docket 68) and subsequently denied plaintiffs' motion to reconsider that order. Docket 73.

         Then on September 12, 2016, plaintiffs moved to file a second amended complaint, arguing that defendants' answer to plaintiffs' first amended complaint raised a new interpretation of SDCL § 12-5-21. Docket 78. Plaintiffs argued that defendants' new and unexpected interpretation-namely, that the eight offices listed in SDCL § 12-5-21 had later deadlines to access the South Dakota ballot than all other candidates-and subsequent enforcement of that interpretation changed the nature of the lawsuit. Docket 77. Noting this court's order denying plaintiffs' motion for a permanent injunction, plaintiffs argued that they did not initially challenge the constitutionality of SDCL § 12-5-21 because they were unaware SDCL § 12-5-21 had any connection to their constitutional challenge of SDCL § 12-5-1. Id. This court granted plaintiffs' motion to amend their complaint (Docket 84), and plaintiffs filed their second amended complaint on December 13, 2016. Docket 85.

         In addition to the constitutional challenge to SDCL § 12-5-1, plaintiffs' second amended complaint raises a constitutional challenge to SDCL § 12-5-21 as a violation of the equal protection clause. Id. The parties subsequently sought to conduct additional discovery and to submit additional briefing. Docket 86. Thus, this court denied without prejudice the pending cross motions for summary judgment on December 20, 2016. Docket 87. Plaintiffs now move for summary judgment on both claims raised in the second amended complaint (Docket 97), and defendants move for summary judgment on both claims. Docket 102.

         FACTUAL BACKGROUND

         In order to participate in South Dakota's primary election, a new political party must file a written declaration validly signed by at least 2.5% of South Dakota voters “as shown by the total vote cast for Governor at the last preceding gubernatorial election” with the Secretary of State's office by the last Tuesday of March preceding the primary election. SDCL § 12-5-1. Any signatures from more than one year prior to the declaration's filing date are invalid. Id. South Dakota primary elections are held “on the first Tuesday after the first Monday in June of every even-numbered year.” SDCL § 12-2-1. SDCL § 12-5-1 further provides that a political party loses the right to participate in the primary election if it fails to meet the definition of political party, which is defined in SDCL § 12-1-3(10) as “a party whose candidate for any statewide office at the last preceding general election received at least two and one-half percent of the total votes cast for that statewide office.”[1] This means that a political party previously recognized under the petition process that then fails to receive 2.5% of the vote for any statewide office in a general election will have to regain new political party status through the petition process outlined in SDCL § 12-5-1 in the next election year.

         To appear on the general election ballot, South Dakota law requires candidates for the United States Senate, United States House of Representatives, Governor, and all state legislative seats to participate in the primary election. See Docket 103 at 5 (citing to SDCL § 12-6-1). Defendants have interpreted SDCL § 12-5-21 to allow certain other candidates to be nominated by a political party's state convention instead of through a primary election. SDCL § 12-5-21 provides:

[t]he state convention shall nominate candidates for lieutenant governor, attorney general, secretary of state, state auditor, state treasurer, commissioner of school and public lands, and public utilities commissioner and in the years when a President of the United States is to be elected, presidential electors and national committeeman and national committeewoman of the party.

SDCL § 12-5-21.

         Nominations at a party's state convention must be certified and received in the Secretary of State's office by the second Tuesday in August. SDCL § 12-5-22. A party must also give the Secretary of State 30 days' notice of the time and place of its party convention. SDCL § 12-5-17. Both parties agree that for the 2016 election, the last day new political parties could file their signatures to access the general election ballot for the SDCL § 12-5-21 offices was July 11, 2016. Docket 109 at 3.[2]

         Plaintiffs include two political parties, the Libertarian Party and the Constitution Party, and four of their current or former members. Ken Santema is a South Dakota resident, registered voter, and was the Chair of the Libertarian Party of South Dakota when this suit was filed. Docket 36; Docket 85 at 2. Bob Newland is a South Dakota resident, registered voter, and a member of the Libertarian Party of South Dakota. Docket 35; Docket 85 at 2. Lori Stacey is a South Dakota resident, registered voter, and the Chair of the Constitution Party of South Dakota. Docket 37; Docket 85 at 3. Joy Howe is a South Dakota resident, registered voter, and a member of the Constitution Party of South Dakota. Docket 38; Docket 85 at 3.

         Plaintiffs state that the March deadline forces new political parties to gather their signatures during the cold winter months, which has slowed down their efforts, and that third parties often gain more supporters and raise more money closer to the general election. Docket 36; Docket 37. But to regain political party status for the 2016 election, both the Libertarian Party and the Constitution Party filed their written declarations and accompanying signatures with the Secretary of State. Docket 42 at 1-2.

         Upon reviewing the signatures received on March 23, 2016, the Secretary of State's office determined that the Constitution Party submitted 7, 655 valid signatures, which allowed it to regain political party status for the 2016 election. Id. at 3-4. The Libertarian Party, however, submitted its signatures on a rolling basis in several batches. Id. at 2. As of March 29, 2016, the last Tuesday of March and thus the filing deadline under SDCL § 12-5-1, the Libertarian Party had submitted only 4, 399 valid signatures. Id. at 3. In his Affidavit submitted in support of Defendants' Motion for Summary Judgment, Kea Warne, the Deputy Secretary of State for the Election Services Division of the South Dakota Secretary of State's Office, stated that “[a] potential new political party that failed to submit a sufficient amount of valid signatures prior to the March 29, 2016, deadline would be precluded from participating in the 2016 primary election.” Docket 104 at 4. Defendants state that this deadline “is necessary given the other laws and deadlines by which the South Dakota Secretary of State's Office and the sixty-six (66) county auditors must abide.” Id. at 5-6.

         The Secretary of State's office, however, accepted the Libertarian Party's late signature submissions, which it received on April 4, 2016 and May 2, 2016. Id. at 10. Mr. Warne further stated that after reviewing these additional petitions, “the Secretary of State's Office determined that the Libertarian Party of South Dakota submitted a sufficient amount of signatures to regain political party status pursuant to SDCL 12-5-1.” Id. The Libertarian Party was then notified that it had regained new political party status on Friday, June 17, 2016. Id. South Dakota's 2016 primary election was held on June 7, 2016. Docket 105 at 6.

         Plaintiffs stated in their Answers to Defendants' Discovery Requests that “[t]he Libertarian Party of South Dakota does not desire to participate in the primary election process and has never tried to gain primary ballot access for its candidates.” Docket 48-1 at 7-8. Plaintiffs further stated that “[t]he Constitution Party never had any intention of having a primary election.” Id. at 8. Finally, plaintiffs acknowledged that “[n]o candidate from either the Libertarian Party or Constitution Party tried to access the ballot for the 2016 primary election by collecting signatures or submitting a nominating petition to the Secretary of State's Office.” Id. at 11-12. But plaintiffs have attempted to comply with the SDCL § 12-5-1 March deadline several times in order to access the South Dakota ballot. See Docket 111 (noting that the Constitution Party met the March deadline in 2008, 2012, and 2016-the only third political party to meet the deadline more than once-and the Libertarian Party met the deadline in 2012); Docket 85 (explaining that plaintiffs submitted their signatures because they “wanted to be on the ballot for the 2016 general election in South Dakota” but some were approved after the March 29 deadline); Docket 36 (Ken Santema stated in his affidavit that he began efforts to collect signatures “to comply with this [March 29] deadline for the 2016 election . . . .”).

         The South Dakota Constitution Party nominated Kurt Evans for the United States Senate and Wayne Schmidt for the State House District 23 at its party convention in the summer of 2016, but it received a letter from Mr. Warne on July 13, 2016, advising that Mr. Evans and Mr. Schmidt could not be placed on the 2016 general election ballot. Docket 47-5. Mr. Warne stated in his letter that United States Senate and state legislative candidates are not included in the list of offices that can be nominated at a state party convention. Id. Because these candidates did not participate in the 2016 primary election, they were ineligible to be placed on the general election ballot. Id.

         For the 2018 election, the filing deadline under SDCL § 12-5-1 will be March 27, 2018, and a new political party attempting to comply with the requirements in SDCL § 12-5-1 will need 6, 936 valid signatures. Docket 109.

         LEGAL ...


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