United States District Court, D. South Dakota, Southern Division
LIBERTARIAN PARTY OF SOUTH DAKOTA; AARON AYLWARD, 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.
MEMORANDUM OPINION AND ORDER
Lawrence L. Piersol, United States District Judge.
brought this action against 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, alleging two violations of constitution law
with regard to South Dakota's ballot access laws. Both
parties, represented by counsel, presented evidence and
argument at trial on February 6-7, 2018. Because the State
Chair of the Libertarian Party has changed since the
beginning of this litigation, Plaintiffs moved to substitute
Aaron Aylward, the current chair of the party, for Ken
Santema, the past chair. The Court granted Plaintiffs'
motion. The Court took the constitutional issues under
advisement at the conclusion of trial on and, for the
following reasons, now finds SDCL §§ 12-5-1,
12-6-1, 12-6-4, and 12-5-21 unconstitutional as applied to
15, 2015, Plaintiffs first brought this suit against
Defendants, seeking a declaratory judgment that the deadlines
in SDCL 12-5-1 violate their First and Fourteenth Amendment
rights by imposing unreasonable restrictions on new political
parties seeking to participate in South Dakota elections.
Doc. 1, 19. Defendants moved for summary judgment on March 3,
2016, arguing that South Dakota's ballot access laws
place reasonable and nondiscriminatory restrictions on
political parties. Doc. 25. The Court denied Defendants'
motion, reasoning 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. Doc. 43.
again moved for summary judgment on July 15, 2016, arguing
that discovery gave support to their motion. Doc. 44.
Plaintiffs moved for summary judgment on July 23, 2016, and
for a permanent injunction on July 25, 2016. Doc. 54, 60. The
Court denied Plaintiffs' motion for permanent injunction
and subsequently denied Plaintiffs' motion to reconsider
that order. Doc. 68, 73.
moved to file a second amended complaint on September 12,
2016, arguing that Defendants' answer to Plaintiffs'
first amended complaint raised a new interpretation of SDCL
12-5-21. Doc. 77-78. The Court granted Plaintiffs' motion
to amend and Plaintiffs filed their second amended complaint
on December 13, 2016, raising an additional constitutional
challenged to SDCL 12-5-21 as a violation of the equal
protection clause. Doc. 84-85. Because the Parties sought to
conduct additional discovery, the Court denied without
prejudice the pending cross motions for summary judgment on
December 20, 2016. Doc. 87. Plaintiffs and Defendants
subsequently filed cross motions for summary judgment on both
claims raised in the second amended complaint on July 27,
2017 and July 31, 2017, respectively. Doc. 97, 102.
denying both motions, the Court found that questions remained
as to whether South Dakota had a compelling state interest in
having certain candidates participate in a primary election
while others can be selected by convention, and whether South
Dakota's ballot access laws were narrowly tailored to
further that state interest. Doc. 115 at 21-22. Additionally,
because the equal protection claim necessarily required
resolution of Plaintiffs' first claim, the Court could
not conclude as a matter of law that South Dakota's
disparate nominating process was a violation of
Plaintiffs' equal protection rights. Id. at 25.
Finding "reason to believe that the better course would
be to proceed to a full trial, " the Court denied the
cross motions for summary judgment and a trial was held on
February 6-7, 2018. Id. at 26 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256
appear on the general election ballot, South Dakota law
requires party-affiliated candidates for the United States
Senate, United States House of Representatives, Governor, and
all state legislative seats to participate in a primary
election to be held "on the first Tuesday after the
first Monday in June of every even-numbered year." SDCL
§§ 12-6-1, 12-2-1. In order for a new political
party to participate in South Dakota's primary election,
that 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. For the year 2018, that
number is equivalent to 6, 936 signatures, all of which must
be filed by March 27, 2018. Any registered voter may sign the
written declaration, not just a member of that party, but any
signatures from more than one year prior to the
declaration's filing date are invalid. Id. Then,
for that party to put a candidate on the ballot under the
party name, that candidate must receive additional signatures
from the members of that party-specifically, state-wide and
federal candidates must collect 250 signatures of registered
party members, while county and legislative candidates
require five signatures of registered party voters in that
county or district. SDCL § 12-5-1.4. In order to
retain political party status and be eligible to participate
in a primary election again the following year, the party
must have a "candidate for any statewide office at the
last preceding general election receive[ ] at least two and
one-half percent of the total votes cast for that statewide
office." SDCL § 12-1-3(10). If the party fails to have a
candidate receive such support, the party loses political
party status and must regain it through the 2.5% petition
process again in the next election year to participate in
that year's primary election.
candidates for office in South Dakota must be nominated
through a primary election to appear on the general election
ballot, however. State law provides:
The 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. To hold a convention, a new party that
does not have candidates that must participate in primaries
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
July 1st before the general election. SDCL §
12-5-1.5. The party must also give 30 days notice of
the time and place of its party convention. SDCL §
12-5-17. Finally, nominations must be certified and received
in the Secretary of State's office by the second Tuesday
in August. SDCL § 12-5-22. Plaintiffs' expert could
identify no other state with an election law that sets a
different filing deadline to run for attorney general or
lieutenant governor than that for governor.
include two political parties, the Libertarian Party and the
Constitution Party,  and four of their current or former
members. Ken Santema was originally part of the litigation as
a South Dakota resident, registered voter, and Chair of the
Libertarian Party of South Dakota when this suit was filed.
Doc. 36, 85 at 2. At trial, Plaintiffs' counsel moved to
replace Ken Santema with Aaron Aylward, who is also a South
Dakota resident and registered voter, is the current Chair of
the Libertarian Party of South Dakota, and is currently
collecting signatures for candidacy as a state legislator on
the Libertarian Party ticket. Bob Newland is a South Dakota
resident, registered voter, and a member of the Libertarian
Party of South Dakota who was heavily active in campaigning
in the past, both as a member of the party and as a candidate
on the party's ticket on a number of occasions. Lori
Stacy is a South Dakota resident, registered voter, and Chair
of the Constitution Party of South Dakota. Doc. 37, 85 at 3.
Joy Howe is a South Dakota resident, registered voter, and
was the Secretary of the Constitution Party of South Dakota
when this lawsuit was filed. Ms. Howe also formerly served as
Chair of the Constitution Party of South Dakota, though she
is no longer a registered member. Mr. Aylward, Mr. Newland,
and Ms. Howe all testified at trial.
2016, South Dakota's primary election was held on June 7.
The Libertarian Party was unable to obtain political party
status by the March 29, 2016 deadline, filling only 4, 399
valid signatures. However, the Libertarian Party had
continued to mail in signatures to the Secretary of
State's office and had submitted a sufficient amount of
signatures to regain political party status on June 17, 2016.
The Constitution Party, on the other hand, successfully met
the March 29, 2016 deadline with 7, 655 valid signatures.
Nevertheless, the Constitution Party did not hold a primary
election and submitted their candidates for Presidential
candidate Darrell L. Castle, Vice Presidential candidate
Scott N. Bradley, U.S. Senate candidate Kurt Evans, and State
House, District 23 candidate Wayne Schmidt via convention
nomination certification. The nominations for Castle and
Bradley were accepted, but those for Evans and Schmidt were
not, as U.S. Senate and state legislator are not included in
the list of offices that can be nominated at state party
conventions pursuant to SDCL § 12-5-21.
argued and this Court previously concluded its June 9, 2016
order denying Defendants' motion for summary judgment, as
well as reiterated in its December 19, 2017 ...