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Libertarian Party of South Dakota v. Krebs

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

February 21, 2018

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,
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.

          MEMORANDUM OPINION AND ORDER

          Lawrence L. Piersol, United States District Judge.

         Plaintiffs 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 Plaintiffs.

         PROCEDURAL BACKGROUND

         On June 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.

         Defendants 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.

         Plaintiffs 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.

         In 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 (1986)).

         FACTUAL BACKGROUND

         To 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.[1] 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).[2] 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.

         Not all 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.[3] 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.

         Plaintiffs include two political parties, the Libertarian Party and the Constitution Party, [4] 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.

         In 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.

         Plaintiffs 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 ...


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