Myers v. Gant
MEMORANDUM OPINION AND ORDER on Motion for Preliminary Injunction and Motion to Dismiss. Signed by U.S. District Judge Lawrence L. Piersol on 9/9/14. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MICHAEL 1. MYERS,
JASON M. GANT, in his official
capacity as Secretary of State for the
State of South Dakota,
SEP 09 201~
MEMORANDUM OPINION ON
PRELIMINARY INJUNCTION AND
MOTION TO DISMISS
This matter is before the Court on a motion for a preliminary injunction filed by Plaintiff
Michael 1. Myers (Myers), and a motion to dismiss the complaint filed by Defendant Jason M. Gant
(Gant). Argument on both motions was heard on August 18,2014, in Sioux Falls, South Dakota.
The Court orally announced that the motion for a preliminary injunction was granted and that the
motion to dismiss the complaint was denied. The Court set forth on the record a summary of the
basis for its rulings, and issued a short order on the motions. For each of the reasons stated by the
Court on the record, and as follows, Myers' motion was granted and Gant's motion was denied.
FINDINGS OF FACT
On January 7, 2014, Myers declared his intention to run as a non-party independent candidate
for Governor of South Dakota in the November 2014 election. On January 9, 2014, Myers and
Caitlin F. Collier (Collier) filed a form with the Secretary of State entitled "Independent Candidate
for President or Governor Declaration of Candidate and Certification of Running Mate." This form
stated Myers intention to run for governor and certified Collier as his lieutenant governor candidate.
Collier, in turn, certified under oath that she agreed to serve as a candidate for lieutenant governor.
Next, Myers circulated his nominating petition.' Collier's name was not required to and did not
, In order to be placed on the general election ballot, South Dakota law requires a non-party
independent candidate for governor to gather a nominating petition signed by no less than one
appear on the Myers' nominating petition. On April 23, 2014, Myers submitted his nominating
petition with more than the required number of signatures of registered voters to the South Dakota
Secretary ofState's Office, which approved Myers' nomination as a non-party independent candidate
On or before June 12,2014, Collier informed Myers that she needed to withdraw from the
race for personal reasons. On June 16,2014, the Secretary of State's Office received a notarized
form from Collier entitled "Candidate's Request to Withdraw Nomination."
On July 8, 2014, Myers announced at a press conference in Sioux Falls his nomination of
Lora Hubbel to replace Collier as his running mate. That same day, Hubbel signed and submitted the
bottom portion of an "Independent Candidate For Governor Declaration of Candidate and
Certification ofRunning Mate" form to the South Dakota Secretary of State's Office to get her name
placed on the election ballot as Myers' running mate. 2 This notarized form was received by the
South Dakota Secretary of State's Office on July 15,2014.
On July 18, 2014, the Secretary of State's office notified Hubbel and Myers by letter that
Hubbel could not be certified as the candidate for lieutenant governor and Collier could not be
removed from the ballot. According to Gant's letter, there is no South Dakota law allowing a non
party Independent gubernatorial candidate to certifY a replacement candidate for lieutenant governor
after the candidate has met the deadline for circulating and filing his or her nominating petition. 3
Gant also stated that Collier cannot simply drop off the ballot because Article IV section 2 of the
percent (1 %) ofthe total votes cast for governor in the previous certified gubernatorial election. See
SDCL § 12-7-1. This type of direct nomination is necessary because non-parties do not have a party
process for the nomination of candidates for governor and lieutenant governor.
Later, Myers certified Hubbel as the lieutenant governor candidate.
The filing deadline for non-party independent candidates of this election cycle was April 29,
2014. See SDCL § 12-7-1. Collier withdrew her nomination as lieutenant governor on June 12,
South Dakota Constitution requires that the governor and lieutenant governor be jointly elected.
Gant believes South Dakota law requires naming Myers and Collier as the non-party candidates for
governor and lieutenant governor on the November 2014 general election ballot even though Collier
has withdrawn from the race.
South Dakota law allows party nominees for governor, such as Republicans and Democrats,
to fill a vacancy created by the death or withdrawal of their running mate up until the second
Tuesday in August, which was August 12,2014, of this year's election cycle. See SDCL § 12-8-6.
As with the nomination of a lieutenant governor, the replacement of a lieutenant governor candidate
must be done by party vote and nomination. Ifa vacancy occurs for lieutenant governor, a statewide
office, the State Party Central Committee is charged with the responsibility of replacing that
nominee. SDCL § 12-6-56. "Vacancies filled by the State Central Committee shall be by unit
representation, each county casting the number ofvotes cast in that county at the last general election
for that party's candidate for Governor." SDCL § 12-6-57. According to Gant, this process ensures
the nomination ofa replacement for a party candidate for lieutenant governor is accomplished by the
voters through their representatives within the party system. Gant contends that Collier's nomination
was secured by the voters of South Dakota after certification by Myers and Collier that Collier
agreed to serve as Myers' choice for lieutenant governor. Replacing Collier with Hubbel, Gant
believes, would undo the will of over 3,000 voters who signed Myers' nominating petition with the
expectation that Collier would be his running mate, and would disenfranchise those voters at the
general election by denying them the opportunity to vote for the individual they expected to be the
lieutenant governor candidate.
Myers claims that the failure to provide equal ballot access to non-party candidates imposes
an unconstitutional burden on his First and Fourteenth Amendment rights of free association by
effectively preventing him from replacing his running mate.
CONCLUSIONS OF LAW
I. Motion to Dismiss
A. Rule 12(b)(7)
Gant first argues that Hubbel and Collier are "necessary parties" because these proceedings
affect their rights. Thus, Gant maintains, Myers' failure to join these parties warrants dismissal of
this action pursuant to Federal Rule of Civil Procedure 12(b)(7).
A person is necessary and must be joined as a party to an action, pursuant to Rule 19, if:
(A) in that person's absence, the court cannot accord complete relief among existing
parties; or (B) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person's absence may: (i) as a
practical matter impair or impede the person's ability to protect the interest; or (ii)
leave an existing party subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations because of the interest.
Fed.R.Civ.P. 19(a). Gant does not claim that Hubbel or Collier fit within either ofthe two categories
of "necessary" parties. Rather, he asserts that ajudgment in Myers' favor will "affect" the women's
rights. But Collier is trying to withdraw from the race for lieutenant governor and Hubbel is trying
to join the race, so a judgment in Myers' favor will protect rather than impair their interests, and
there is no risk of inconsistent judgments.
B. Rule 12(b)(6)
Next, Gant argues that Myers cannot prove any set of facts entitling him to relief and thus
this case should be dismissed for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). The following discussion regarding the merits of Myers' motion for a preliminary
injunction explains why the Rule 12(b)(6) motion to dismiss was be denied.
II. Motion for Preliminary Injunction
The proper analysis of the preliminary injunction motion is found in Planned Parenthood
Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 731-32 (8th Cir. 2008) (en banc) (reaffirming "that a
party seeking a preliminary injunction of the implementation of a state statute must demonstrate
more than just a 'fair chance' that it will succeed on the merits. We characterize this more rigorous
standard ... as requiring a showing that the movant 'is likely to prevail on the merits. "'). That case
requires the Court to examine first the likelihood that Myers will prevail on the merits of his claim
before the Court applies the remaining three factors of a preliminary injunction analysis: (1) the
threat of irreparable harm or injury to the movant absent the injunction, (2) the balance between the
harm to the movant and the harm that the injunction's issuance would inflict on other interested
parties, and (3) the public interest. Dataphase Sys,. Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir.
A. Likelihood of Success on the Merits
As argued by Gant, States "may, and inevitably must, enact reasonable regulations ofparties,
elections, and ballots to reduce election- and campaign-related disorder." Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997); see also Storer v. Brown, 415 U.S. 724,730 (1974).
Thus, voting regulations are not automatically subjected to heightened scrutiny. In Anderson v.
Celebrezze, 460 U.S. 780 (1983), the Supreme Court set forth the appropriate analytical framework
for determining the constitutionality of state ballot access restrictions:
Constitutional challenges to specific provisions of a State's election laws ... cannot
be resolved by any "litmus-paper test" that will separate valid from invalid
restrictions .... Instead, a court must resolve such a challenge by an analytical process
that parallels its work in ordinary litigation. It must first consider the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate
the precise interests put forward by the State as justifications for the burden imposed
by its rule. In passing judgment, the Court must not only determine the legitimacy
and strength ofeach ofthose interests; it also must consider the extent to which those
interests make it necessary to burden the plaintiffs rights. Only after weighing all
these factors is the reviewing court in a position to decide whether the challenged
provision is unconstitutional.
Anderson, 460 U.S. at 789.
In Anderson, the Court considered the constitutionality of an Ohio statute that required
independent parties to declare their presidential candidates in March, while the maj or political parties
could declare their nominees in primaries closer to election day. Celebrezze was an independent
candidate who was precluded by the Ohio statute from appearing on the ballot because his statement
ofcandidacy and nominating petition were not filed until May. Applying its balancing test, the Court
first examined the burdens on independent voters. The Court found that the state's regulation would
impose a significant injury to independent voters who may not be able to vote for the candidate of
their choice. Id at 788, 795. The Court stated that the "March deadline place[d] a particular burden
on [... ] Ohio's independent-minded voters," and a "burden that falls unequally [... ] impinges, by its
very nature, on associational choices protected by the First Amendment." Id at 792-93. The Court
also noted that "in the context of a Presidential election, state-imposed restrictions implicate a
uniquely important national interest," and that Ohio's deadline not only "burden [ed] the associational
rights of independent voters and candidates," but "place[d] a significant state-imposed restriction
on a nationwide electoral process." Id at 794-95.
Ohio identified three main interests advanced by the early filing deadline for independent
candidates: voter education, political stability, and "equal treatment for partisan and independent
candidates." Id at 796. The Court recognized that "the States's important regulatory interests are
generally sufficient to justify reasonable, nondiscriminatory restrictions," but specified that, as a
court proceeds to the balancing phase of its inquiry, it must "determine the legitimacy and strength
of each of [the asserted] interests." Id at 789. The Court concluded that the deadline was not
necessary to further any of these interests. With respect to voter education, the Court said that "in
the modem world it is somewhat unrealistic to suggest that it takes more than seven months to
inform the electorate about the qualifications of a particular candidate simply because he lacks a
partisan label." Id at 797. Regarding equal treatment, the Court found that "neither the
administrative justification nor the benefit of an early filing deadline is applicable to an independent
candidate." Id at 800. As for political stability, the Court held that "the early filing deadline is not
precisely drawn to protect the parties from "intraparty feuding," but instead it simply "discriminate [s]
against independents." Id at 804-05.
The Court ruled that the early filing requirement placed an unconstitutional burden on the
voting and associational rights of the supporters of independent candidates because the burden on
voters outweighed the State's minimal interest in imposing the deadline. Id. at 806.
In Norman v. Reed, 502 U.S. 279 (1992), the Supreme Court restated the Anderson v.
Celebrezze balancing test in another ballot access case, and added the possibility of strict scrutiny
review. At issue in Norman was an Illinois statute that prohibited candidates for county office from
running under the "Harold Washington Party" (HWP) because an established political party by that
name already existed in the City of Chicago. Because the Party had previously contested elections
only in the City of Chicago, Illinois law required it to qualify as a "new party" in order to contest
countywide elections under the HWP name. The party did not obtain the 25,000 signatures required
to qualify in the Cook County suburban district.
The Court began its analysis by emphasizing the constitutional rights ofcitizens to create and
develop new political parties which "advances the constitutional interest of like-minded voters to
gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express
their own political preferences." Norman, 502 U.S. at 288 (citing Anderson, 460 U.S. at 793-94).
Citing Anderson, the Court stated the standard of review:
To the degree that a State would thwart this interest by limiting the access of new
parties to the ballot, we have called for the demonstration of a corresponding interest
sufficiently weighty to justify the limitation, and we have accordingly required any
severe restriction to be narrowly drawn to advance a state interest of compelling
Norman, 502 U.S. at 288-289. The Court noted that unless a new party had the resources to run a
statewide campaign, it would be foreclosed from contesting elections outside the political
subdivision in which it was established. Id. at 289. The Court concluded that the State's restriction
on use of political party names imposed a severe burden on voters of new political parties. Id. at
289-90. The State's proferred interests in avoiding voter confusion and requiring a new party to
demonstrate reasonable support before getting on the ballot were not compelling enough to justify
this severe restriction. Id. at 290. Although the State's interests are valid, they could be met with
less burden on constitutional rights, such as by "requiring the candidates to get formal permission
to use the name from the established party they seek to represent, a simple expedient for fostering
an informed electorate without suppressing the growth of small parties." Id. at 290. Using strict
scrutiny, the Court struck down the provision regarding the name of the party and the requirement
that the party submit a petition signed by 25,000 people in each political subdivision before getting
all of its candidates in one subdivision placed on the ballot.
Shortly after Norman, the Supreme Court addressed the Anderson balancing test again in
Burdick v. Takushi, 504 U.S. 428 (1992). There, the Court upheld as constitutional a Hawaii ban
on write-in voting. In discussing the standard of review, the Court noted:
Under this standard, the rigorousness of our inquiry into the propriety of a state
election law depends upon the extent to which a challenged regulation burdens First
and Fourteenth Amendment rights. Thus, as we have recognized when those rights
are subjected to "severe" restrictions, the regulation must be "narrowly drawn to
advance a state interest of compelling importance." But when a state election law
provision imposes only "reasonable, nondiscriminatory restrictions" upon the First
and Fourteenth Amendment rights of voters, "the State's important regulatory
interests are generally sufficient to justify" the restrictions.
Burdick, 504 U.S. at 434 (internal citations omitted).
Burdick, the challenger, wanted to vote for an individual who had not filed a nominating
petition and was not on the ballot. The Court began its analysis by rejecting Burdick's argument that
strict scrutiny should be applied to his claim. The Court explained that although "voting is of the
most fundamental significance under our constitutional structure," not all election regulations are
subject to strict scrutiny because that would hamper a state's legitimate ability to regulate elections.
Id at 433 ("[T]o subject every voting regulation to strict scrutiny and to require that the regulation
be narrowly tailored to advance a compelling state interest. .. would tie the hands of States seeking
to assure that elections are operated equitably and efficiently."). Noting that candidates have three
other mechanisms for getting on the ballot in Hawaii, the Court concluded that the Hawaii ban on
write-in voting imposed only a "very limited" burden on constitutional rights. Id at 435-37.
Moreover, the State has an interest in election administration, specifically in restricting the size of
the ballot, avoiding "sore-loser" candidates and preventing "party raiding." Id. at 439. Under the
"more flexible standard" of Anderson, the Court concluded that Hawaii's statutory scheme posed
only minimal barriers to potential candidates and that the State's asserted legitimate interest in
election administration outweighed the limited burden the regulation imposed on voters. Id. at 434,
Under Anderson and its progeny, this Court first must determine whether South Dakota law
imposes a severe burden on constitutional rights ofMyers and voters. A severe burden would trigger
strict scrutiny, requiring the regulation to advance a state interest of compelling importance. If the
law imposes a "reasonable, nondiscriminatory" limitation rather than a severe burden on First
Amendment rights, the Court could apply a more deferential standard of review, as the Court did in
Burdick, and the limitation would be justified by a State's "important regulatory interest." Burdick,
504 U.S. at 434. Accordingly, the Court will consider what burden is placed on the constitutional
rights ofvoters and Myers and then balance that burden against the precise interests identified by the
State and the extent to which these interests require that the constitutional rights be burdened.
1. Magnitude of Burden on First Amendment Rights
"A burden that falls unequally on new or small political parties impinges, by its very nature,
on associational choices protected by the First Amendment." Anderson, 460 U.S. at 793. South
Dakota's election laws governing a gubernatorial candidate's ability to fill a vacancy created by the
withdrawal of a running mate apply only to party candidates and restrict non-party candidates from
the same or similar benefits. South Dakota law requires non-party independent candidates for
governor and lieutenant governor to remain the same with no replacements, starting when the
gubernatorial candidate signs the declaration for office certifying his or her lieutenant governor
selection. That certification must take place prior to circulation of the candidate's nominating
petition. Circulation of the petition must begin soon enough to be completed by the last Tuesday of
April when the nominating petition must be filed. 4 In contrast, South Dakota law allows political
4 No petition or certificate of nomination may be circulated prior to the first day of January of
the year in which the election will be held. SDCL § 12-7-1.1.
parties, on or before the second Tuesday in August, to fill vacancies that occur after the parties'
primary elections. See SDCL § 12-8-6. This statutory scheme gives preferential ballot treatment to
candidates of political parties. A fairer scheme would include a procedure to fill a vacancy caused
by withdrawal ofan independent gubernatorial candidate's running mate.
South Dakota's statutory scheme excluding Myers' true running mate from the general
election ballot restricts the ability of Myers and his supporters to choose a lieutenant governor
candidate, to place the candidate on the ballot, and to vote for that candidate in the election. It is a
severe burden on the associational rights of Myers and South Dakota voters. This burden is
magnified by the discriminatory effect ofthe scheme on non-party candidates. Thus, the State must
show an interest of compelling importance to justify the heavy burden of meeting strict scrutiny
2. Precise Interests Identified by the State and Extent to Which
the State Interests Justify the Burden on Constitutional Rights of
Myers and Voters
Gant argues that the State has an interest in protecting the integrity of its political processes
from frivolous or fraudulent candidacies and ensuring those appearing on the ballot have established
genuine support. The Supreme Court has recognized the viability of these interests.
There is surely an important state interest in requiring some preliminary showing of
a significant modicum of support before printing the name of a political
organization's candidate on the ballot-the interest, if no other, in avoiding
confusion, deception, and even frustration of the democratic process at the general
Storer, 415 U.S. at 732 (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971». Gant asserts that
the Myers-Hubbel ballot does not enjoy the modicum ofsupport necessary to be placed on the ballot
because Myers announced Collier as his running mate before the voters signed Myers' nominating
petition. According to Gant, the voters who signed Myers' nominating petition will be
disenfranchised by denying them the opportunity to vote for the individual they expected to be the
lieutenant governor candidate. This concern might be justified, but it is not compelling because the
nominating petition for Governor only identifies Myers, not the lieutenant governor candidate,
indicating that the voters who signed the petition were doing so in support ofMyers for governor and
not necessarily in support of Collier for lieutenant governor.
Gant is concerned that Myers is allowed to select his running mate for lieutenant governor
when there is a different procedure for the selection of a party candidate. For political parties, the
nomination of lieutenant governor is made at the state convention, and the replacement of a
lieutenant governor candidate due to vacancy must also be done by party vote and nomination. In
contrast, non-party candidates, like Myers, do not, and indeed may not, participate in conventions.
Instead, once a non-party gubernatorial candidate has the requisite number of signatures on a
nominating petition, he or she goes to the general election ballot The state legislature has provided
a procedure for this process in SDCL § 12-7-1. The State does not take issue with the statutory
scheme allowing the independent candidate to unilaterally select a running mate at the beginning of
the nominating process and it is not clear why it is important to the State that filling a vacancy should
be treated differently. The nature ofa non-party candidacy for governor requires Myers to personally
select his running mate both at the beginning ofthe race and ifa vacancy occurs. The State's interest
in prohibiting him from doing so is not justified, much less compelling.
Moreover, the State's current system causes more voter confusion than it alleviates if the
withdrawn candidate, Collier, who has no intention of serving as lieutenant governor, is left on the
ballot and the actual running mate, Hubbel, is not on the ballot Voters deserve to know the names
and ideas of the candidates on the ballot and that they are ready to serve. The legislature could
establish some procedure for substitution ofnon-party candidates-- now there is no method provided.
It is up to the legislature to select the method.
Another consideration is the similar situation in Riemers v. Jaeger, 827 N.W.2d 330 (N.D.
2013), where a gubernatorial candidate was kept off ofthe general election ballot as the Libertarian
candidate due to a similar constitutional requirement that the governor and lieutenant governor be
jointly elected. The lieutenant governor candidate did not qualify to be a candidate and there was
no North Dakota procedure to name another candidate. The gubernatorial candidate was then not
allowed on the ballot as he had no lieutenant governor candidate as was required by the North
Following the analytical framework set forth by the Supreme Court in Anderson v.
Celebrezze and its progeny, the Court finds that South Dakota's statutory scheme imposes a severe
burden on the constitutional rights of Myers and his potential voters. Because the State has not
shown that a compelling state interest is advanced by restricting the ability of non-party candidates
such as Myers from replacing a running mate, the law violates the Constitution. For these reasons,
the Court concludes Myers is likely to succeed on his challenge to the absence of a mechanism in
the South Dakota statutes allowing him to replace his running mate.
B. Irreparable Harm
Once a constitutional injury has been demonstrated, the Court assumes that Myers has
satisfied the irreparable harm prong. See Elrodv. Burns, 427 U.S. 347, 373 (1976) ("The loss of
First Amendment freedoms, for even minimal periods oftime, unquestionably constitutes irreparable
injury"). Indeed, when a general election goes forward, any infringement on Myers' constitutional
rights would be irreparable.
C. Balance of Harms
The balance ofharms analysis examines the harm ofgranting or denying the injunction upon
the parties to the dispute and upon other interested parties, including the public. Dataphase, 640
F.2d at 114. Gantclaims that requiring the State to place Hubbel's name on the ballot would thwart
the State's legitimate interest in protecting the integrity of the ballot and maintaining a stable
political system. As discussed above, under the circumstances present here, the harm Myers would
suffer by not placing Hubbel' s name on the ballot outweighs the State's interest. Furthermore, harm
to Collier will be alleviated by allowing her to withdraw as a lieutenant governor candidate, and
harm to Hubbel will be avoided by placing her name on the ballot as the candidate for lieutenant
governor. The balance ofharms weighs in favor ofgranting the motion for a preliminary injunction.
D. Public Interest
The final Dataphase factor is the public interest. As mentioned above, South Dakota's
statutory scheme excluding Myers' true running mate from the general election ballot impinges on
the associational rights of voters who have a desire to vote for non-party candidate Myers and the
lieutenant governor candidate who is ready and willing to serve in that capacity. The public interest
factor favors corrective action in this case.
For these reasons, Plaintiffs motion for a preliminary injunction was granted and
Defendant's motion to dismiss was denied.
-day of September, 2014.
BY THE COURT: _ ~
I~wrence L. PIersol
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?