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, SECRETARY OF THE CONSTITUTION PARTY OF SOUTH DAKOTA; 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.
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.” 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.
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.
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.
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
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.
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.
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.
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 . . . .”).
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.
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.