South Dakota Libertarian Party et al v. Gant
Filing
19
MEMORANDUM OPINION ON MOTION FOR PRELIMINARY INJUCTION AND MOTION TO DISMISS Signed by U.S. District Judge Lawrence L. Piersol on 10/10/14. (MWT)
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UNITED STATES DISTRICT COURT
OCT 1 U (L; 1
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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CIV 14-4132
SOUTH DAKOTA LIBERTARIAN
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PARTY; EXECUTIVE
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COMMITTEE OF THE SOUTH
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DAKOTA LIBERTARIAN PARTY; and
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RYAN GADDY
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Plaintiffs,
* MEMORANDUM OPINION ON
MOTION FOR
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PRELIMINARY INJUNCTION
vs.
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AND
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MOTION TO DISMISS
JASON M. GANT, in his official
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capacity as Secretary of State for the
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State of South Dakota,
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Defendant.
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This matter came before the Court on a motion for a preliminary injunction filed by Plaintiffs
South Dakota Libertarian Party (SDLP), its Executive Committee and Ryan Gaddy, and a motion to
dismiss the complaint filed by Defendant Jason M. Gant (Gant). Argument on both motions was
heard on August 28, 2014, in Sioux Falls, South Dakota. The Court orally announced that the
motion for a preliminary injunction was denied and that the motion to dismiss the complaint was
granted. 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,
Plaintiffs' motion was denied and Defendant's motion was granted.
FINDINGS OF FACT
South Dakota law requires a political party to adopt a constitution or a set of bylaws,
consistent with state law, which are then certified to, and filed with, the Secretary of State. SDCL
§ 12-5-1. The Libertarian Party of South Dakota certified its bylaws to the Secretary of State on
March 23, 2012. The Secretary of State is required to notify county auditors of any party bylaw that
affects an election. SDCL § 12-5-1.3. The Libertarian Party's bylaws prohibit the nomination of any
candidate who is not a registered member of the Libertarian Party at the time ofnomination. 1
The Libertarian Party o fSouth Dakota held its state convention on Saturday, August 9, 2014.
That morning, Ryan Gaddy (Gaddy) signed and dated a change ofvoter registration form, attempting
to change his party affiliation from Republican to Libertarian. Later, during the convention, Gaddy
was nominated as the SDLP's candidate for Public Utilities Commissioner. On Monday, August 11,
Bob Newland, Executive Committee Member ofthe SDLP, mailed Gaddy's voter registration to the
Minnehaha County Auditor's Office. It was received by the Auditor on August 13, 2014. The
Secretary of State's Office received the SDLP's official certification of statewide candidates on
August 11, 2014. Upon review, the Secretary of State found that Gaddy completed a voter
registration card on August 9, 2014, but the voter registration card was not received by the
Minnehaha County Auditor until August 13, 2014. A change in voter registration is not effective
until received by the county auditor. 2 SDCL § 12-4-6.1. As such, Gaddy was still a registered
Republican at the time of his nomination by the Libertarian Party. South Dakota law requires all
candidates who seek a party's nomination to be registered affiliates of the party. SDCL § 12-6-3.2
(''No person may sign a declaration of candidacy or be nominated as a political candidate for a party
unless that person is a registered voter with that party affiliation."). Because Gaddy was not a
registered Libertarian at the time of his nomination, the Secretary of State rejected the Libertarian
Party's nomination of Gaddy as a candidate for Public Utilities Commissioner.
1
Article V § 1 of the bylaws states, ''To be eligible for any Party office, a candidate must be a
member in good standing of the Party and must reside in South Dakota."
2
Ifthe voter registration card is completed at an agency listed in SDCL § 12-4-2, is received by
the auditor within five days following any voter registration deadline and is dated by the deadline, the
registration card is considered effective on the date that it was signed at the agency. SDCL § 12-46.1. There is no dispute that Gaddy did not complete his change in voter registration card at an
approved agency, thus his registration as a Libertarian was not effective until his card was received
by the county auditor on August 13, 2014.
2
Plaintiffs sought a declaration that SDCL § 12-6-3.2 is unconstitutional, as well as injunctive
relief directing the Secretary of State to place Gaddy's name on the general election ballot as the
SDLP's nominee for Public Utilities Commissioner.
CONCLUSIONS OF LAW
I. Motion for Preliminary Injunction
The proper analysis of the preliminary injunction motion is found in Planned Parenthood
Minn., ND., S.D. v. Rounds, 530 F.3d 724, 731-32 (8th Cir. 2008) (en bane) (reaffirming ''that a
party seeking a preliminary injunction ofthe 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 Plaintiffs will prevail on the merits of their 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. 1981).
A. Likelihood of Success on the Merits
As an initial matter, the Supreme Court has recognized that ''there must be a substantial
regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos,
is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730 (1974). In Storer,
the Supreme Court upheld as constitutional a California law similar to SDCL § 12-6-3.2. The law
at issue in Storer barred any candidate from running as an independent (non-party) candidate ifthey
had been affiliated with a political party at any time during the twelve months prior to the next
primary. Two former members of the Democratic Party who were disqualified as independent (non-
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party) candidates for Congress challenged the law as violating their First and Fourteenth Amendment
rights. Strictly scrutinizing the statute, 3 the Court held that it served a compelling state interest.
It protects the direct primary process by refusing to recognize independent candidates
who do not make early plans to leave a party and take the alternative course to the
ballot. It works against independent candidacies prompted by short-range political
goals, pique, or personal quarrel. It is also a substantial barrier to a party fielding an
'independent' candidate to capture and bleed off votes in the general election that
might well go to another party.
A State need not take the course California has, but California apparently believes
with the Founding Fathers that splintered parties and unrestrained factionalism may
do significant damage to the fabric of government. See The Federalist, No. 10
(Madison). It appears obvious to us that the one-year disaffiliation provision furthers
the State's interest in the stability ofits political system. We also consider that interest
as not only permissible, but compelling and as outweighing the interest the candidate
and his supporters may have in making a late rather than an early decision to seek
independent ballot status. Nor do we have reason for concluding that the device
California chose, § 6830(d) (Supp.1974), was not an essential part of its overall
mechanism to achieve its acceptable goals. As we indicated in Rosario, the
Constitution does not require the State to choose ineffectual means to achieve its
aims. To conclude otherwise might sacrifice the political stability ofthe system ofthe
State, with profound consequences for the entire citizenry, merely in the interest of
particular candidates and their supporters having instantaneous access to the ballot.
Storer, 415 U.S. at 735-736.
Plaintiffs do not attempt to distinguish Storer, and it would be difficult to do so. The South
Dakota provision requiring candidate affiliation is far less stringent than the 12-month disaffiliation
provision in Storer. The South Dakota statute does not single out independent (non-party) candidates
3
Some language in Storer intimated the balancing test that the Supreme Court would later employ
to decide whether state interests are sufficient to support a ballot access regulation that infringes on
constitutional rights. 415 U.S. at 730 (noting that decisions concerning the validityofballot access
restrictions are ''very much a 'matter of degree,' very much a matter of 'considering the facts and
circumstances behind the law, the interests which the State claims to be protecting, and the interests
of those who are disadvantaged by the classification"') (quoting Dunn v. Blumstein, 405 U.S. 330,
348 (1972) and Williams v. Rhodes, 393 U.S. 23, 30 (1968), respectively)).
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or minor party candidates for separate treatment, nor does it set a time period for disaffiliation from
another party. Under Storer, SDCL § 12-6-3.2 withstands constitutional scrutiny even under the
strict standard of review.
Nine years after Storer, in Anderson v. Celebrezze, 460 U.S. 780 (1983), the Supreme Court
promulgated a balancing of interests test 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
of each of those 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 well before the major
political parties had determined their nominees. Anderson was an independent candidate who was
precluded by the Ohio statute from appearing on the ballot because his statement of candidacy and
nominating petition were not filed by the deadline. Applying the balancing test, the Court focused
on the interests of the voters rather than on the candidate. Id. at 806 (''We began our inquiry by
noting that our primary concern is not the interest of candidate Anderson, but rather, the interests of
the voters who chose to associate together to express their support for Anderson's candidacy and the
views he espoused."). The Court found that the state's regulation would impose a significant injury
to independent voters who may not be able to vote forthe candidate oftheir choice. Id. at 788, 795.
The Court 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
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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 ofits 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 and ruled that the early filing requirement placed an unconstitutional
burden on the voting and associational rights ofthe supporters of independent candidates because the
burden on voters outweighed the State's minimal interest in imposing the deadline. Id. at 792, 806.
In the present case, Plaintiffs argue that SDCL § 12-6-3.2 should be strictly scrutinized,
relying heavily on Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), where the
Supreme Court struck down Connecticut's closed primary system which allowed only party members
to vote in that party's primary. The Republican Party challenged the law because it was prevented
from inviting unaffiliated voters to vote in the Republican primary. Finding that the regulation
imposed a severe burden on the Republican Party's freedom to associate, the Court applied strict
scrutiny and found that Connecticut's asserted interest in preserving the integrity of the electoral
process was not compelling enough to justify prohibiting the Republican Party from allowing
unaffiliated voters to vote in its primary. The Court pointed out that its ruling was limited to the
factual situation before it - - a political party's desire to invite independent (unaffiliated) voters to
participate in its primary:
Our holding today does not establish that state regulation of primary voting
qualifications may never withstand challenge by a political party or its membership.
A party seeking, for example, to open its primary to all voters, including members of
other parties, would raise a different combination of considerations. Under such
circumstances, the effect of one party's broadening of participation would threaten
other parties with the disorganization effects which the statutes in Storer v. Brown,
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415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), and Rosario v. Rockefeller, 410
U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), were designed to prevent.
Id. at 224 n. 13. The Court remarked that if the State of Connecticut were to provide "that only
Party members might be selected as the Party's chosen nominees for public office, such a prohibition
of potential association with nonmembers would clearly infringe upon the rights of the Party's
members under the First Amendment to organize with like-minded citizens in support of common
political goals." Id. at 215-216. According to Plaintiffs, this language establishes that a state cannot
control who a party nominates, and that § 12-6-3.2 is unconstitutional because it "explicitly forbids
a person from being nominated by party if that person is not an official member of that partisan
affiliation." (Doc. 10, p. 10.) In addition to being dicta, the language quoted from Tashjian does not
deem unconstitutional every minimal infringement on a party's ability to select a candidate,
particularly if there are sufficiently important state interests justifying the infringement.
Indeed, even the Tashjian Court distinguished the challenge brought by the Republican Party
from challenges brought by the potential candidates in Storer, and by the voters in another political
association case, where the challenged statutes were upheld:
The statute in Storer was designed to protect the parties and the party system against
the disorganizing effect ofindependent candidacies launched by unsuccessful putative
party nominees. This protection, like that accorded to parties threatened by raiding
in Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973)
[involving a challenge by voters to a New York statute requiring a voter to enroll in
the party of his or her choice at least 30 days before the general election in order to
vote in the next party primary] is undertaken to prevent the disruption of political
parties from without, and not, as in this case, to prevent parties from taking internal
steps affecting their own process for the selection of candidates. The forms of
regulation upheld in Storer and Rosario imposed certain burdens upon the protected
First and Fourteenth Amendment interests of some individuals, both voters and
potential candidates, in order to protect the interests ofothers. In the present case, the
state statute is defended on the ground that it protects the integrity of the Party
against the Party itself
Tashjian, 479 U.S. at 224. Plaintiffs admit that the issue in Tashjian differs from the issue presented
here. As discussed above, the Storer Court found that the state's interest in the integrity of its
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political process justified a one year party disaffiliation requirement before a candidate could gain
ballot access as an independent (non-party) candidate. This case presents a similar situation and,
under Storer, SDCL § 12-6-3.2 is constitutional.
After Tashjian, the Supreme Court continued to reiterate that not every election regulation
that burdens associational rights is subject to strict scrutiny. For example, in Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 363-64 (1997), the Supreme Court determined that even though
Minnesota's ban on "fusion" candidates (running as a candidate of two or more parties) imposed a
burden on a party's access to the ballot and its associational rights, the burden was not severe enough
to warrant strict scrutiny. According to the Court, prombiting political parties from naming another
party's candidate as their own was a minimal burden on their associational rights since they were still
free to endorse the other party's candidate. Of particular note is how the Court addressed the New
Party's claim that it has a right to select its own candidate.
The New Party's claim that it has a right to select its own candidate is
uncontroversial, so far as it goes. See, e.g., Cousins v. Wigoda, 419 U.S. 477, 95
S.Ct. 541, 42 L.Ed.2d 595 (1975) (party, not State, has right to decide who will be
State's delegates at party convention). That is, the New Party, and not someone else,
has the right to select the New Party's "standard bearer." It does not follow, though,
that a party is absolutely entitled to have its nominee appear on the ballot as that
party's candidate. A particular candidate might be ineligible for office, unwilling to
serve, or, as here, another party's candidate. That a particular individual may not
appear on the ballot as a particular party's candidate does not severely burden that
party's associational rights. See Burdick, 504 U.S., at 440, n. 10, 112 S.Ct., at 2067
n. 10 ("It seems to us that limiting the choice of candidates to those who have
complied with state election law requirements is the prototypical example of a
regulation that, while it affects the right to vote, is eminently reasonable"); Anderson,
460 U.S., at 792, n. 12, 103 S.Ct., at 1571-1572, n. 12 ("Although a disaffiliation
provision may preclude ... voters from supporting a particular ineligible candidate,
they remain free to support and promote other candidates who satisfy the State's
disaffiliation requirements"); id., at 793, n. 15, 103 S.Ct., at 1572, n. 15.
Timmons, 520 U.S. at 359. In the present case, the Libertarian Party may nominate anyone who is
eligible for office. The State of South Dakota has determined that, to be eligible for office, a nominee
must become a member ofthe party at any time prior to being nominated. Timmons teaches that such
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a requirement is only a slight burden on the party's associational rights and does not justify strict
scrutiny of the law.
Similarly, in Clingman v. Beaver, 544 U.S. 581 (2005), the Supreme Court refused to apply
strict scrutiny to an Oklahoma statute allowing political parties to open their primary elections to only
their own party members and voters registered as independents. The Libertarian Party challenged the
statute because it was prevented from inviting members of other parties to vote in its primaries.
According to the Clingman Court, electoral regulations imposing severe burdens on fundamental
rights are subject to strict scrutiny; those imposing lesser burdens are constitutional if they are
reasonable, non-discriminatory, and justified by legitimate state interests. Id. at 586-87. The Court
distinguished between "minimal infringement" and "severe" burdens, holding that requiring voters to
register with a party before voting in a primary was a minimal barrier to voting because voters could
easily switch their party registration to either independent or to the Libertarian Party. Id. at 591-92.
The Court compared the Oklahoma regulation conditioning the party's ability to invite a voter into
its primary based on the voter's willingness to dissociate from another party with the Minnesota
regulation in Timmons, "in which Minnesota conditioned the party's ability to nominate the candidate
of its choice on the candidate's willingness to disaffiliate from another political party." Id. at 590.
The ease of voter registration was descnbed by the Court.
Disaffiliation is not difficult: In general, "anyone can 'join' a political party merely by
asking for the appropriate ballot at the appropriate time or (at most) by registering
within a state-defined reasonable period of time before an election." Jones, supra, at
596, 120 S.Ct. 2402 (STEVENS, J., dissenting). In Oklahoma, registered members
of the Republican, Democratic, and Reform Parties who wish to vote in the LPO
primary simply need to file a form with the county election board secretary to change
their registration. See Okla. Stat. Ann., Tit. 26, § 4--119 (West Supp.2005). Voters
are not "locked in" to an unwanted party affiliation, see Kusperv. Pontikes, 414 U.S.
51, 60-61, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973), because with only nominal effort
they are free to vote in the LPO primary. For this reason, too, the registration
requirement does not unduly hinder the LPO from associating with members of other
parties. To attract members of other parties, the LPO need only persuade voters to
make the minimal effort necessary to switch parties.
Clingman, 544 U.S. at 590-591.
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The Clingman Court questioned why it had applied strict scrutiny in Tashjian, but noted that
the Oklahoma statute at issue in Clingman was less burdensome than the one in Tashjian. Id. at 592.
Reiterating that "not every electoral law that burdens associational rights is subject to strict scrutiny,"
the Court upheld Oklahoma's minimally burdensome, semiclosed primary system because the state
presented "important regulatory interests," such as preserving political parties as viable interest
groups and deterring party raiding and "sore loser" candidacies. Id. at 593-94.
Under Anderson and its progeny, this Court first must determine whether SDCL § 12-6-3.2
severely burdens the constitutional rights of voters, the SDLP and Gaddy. 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 applies a more deferential standard ofreview and the limitation would
be justified by the State's "important regulatory interest." Accordingly, the Court will consider what
burden is placed on the constitutional rights of voters and the plaintiffs, and then will 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
Plaintiffs argue that SDCL § 12-6-3.2 prohibits a political party from nominating a nonmember as a party candidate for public office, thereby burdening their associational rights. According
to Plaintiffs, Tashjian requires strict scrutiny of the statute and a finding that it is unconstitutional. 4
While it is true that the South Dakota law burdened Plaintiffs by denying the Libertarian Party the
right to nominate Gaddy for the upcoming election, the Supreme Court's reasoning in Timmons and
Clingman supports a finding that SDCL § 12-6-3.2 only minimally burdens Plaintiffs' associational
rights.
Gaddy easily could have met the affiliation requirement by simply filling out a voter
registration card at an approved agency, or by getting the form to the county auditor, any time prior
4
Plaintiffs' argument that the law is unconstitutional is made more difficult because the Libertarian
Party's bylaws also require Libertarian candidates to be registered Libertarians at the time of their
nomination.
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to his nomination. Because a potential candidate is free to join the Libertarian Party with nominal
effort, SDCL § 12-6-3.2 does not impede the ability of the Libertarian Party or its potential
candidates to participate meaningfully in the political process. The burden on the Libertarian Party
is further lessened by the fact that the requirement in this case applies equally and fairly to all political
groups. Because the burden ofparty affiliation is minimal, strict scrutiny does not apply. See Burdick
v. Takushi, 504 U.S. 428, 433-34 (1992) (stating that when laws impose minimal, orless than severe,
burdens on individuals' First Amendment rights, courts err in applying strict scrutiny). When a state
ballot access provision does not severely burden associational rights, the interests of the State ''need
only be sufficiently weighty to justify the limitation imposed on the party's rights." Timmons v. Twin
Cities, 520 U.S. at 364. Thus, Defendant need only show that affiliation with the nominating party
advances an important state interest.
2. Precise Interests Identified by the State and Extent to Which
the State Interests Justify the Burden on Constitutional Rights
The State asserts that it has an interest in requiring an individual to affiliate with a party prior
to becoming a candidate for that party. According to the State: "As in Clingman, the State has an
interest in preserving political parties as viable and identifiable groups, enhancing party building
efforts, and guarding against party raiding and 'sore loser' candidacies by spumed primary
contenders." (Doc. 12, p. 8.) These legitimate and important regulatory state interests justify the
reasonable and nondiscriminatory requirement of party membership set forth in SDCL § 12-6-3.2.
Because the State has shown important interests are advanced by requiring party nominees to be
members of the nominating party, SDCL § 12-6-3.2 is constitutional.
B. Irreparable Harm, Balance of Harms, Public Interest
For the same reasons set forth above, any infringement on Plaintiffs' constitutional rights
caused by SDCL § 12-6-3.2, even if irreparable, balances in favor of denying the injunction in this
case. Requiring the State to place Gaddy's name on the ballot would thwart the State's legitimate
interests in preserving political parties as viable and identifiable groups, enhancing party building
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efforts, and guarding against party raiding and "sore loser" candidacies by spumed primary
contenders. As discussed above, under the circumstances present here, the harm Plaintiffs will suffer
by not placing Gaddy's name on the ballot is outweighed by the State's interests.
The final Dataphase factor is the public interest. South Dakota law, SDCL § 12-6-3.2, only
minimally impinges on the associational rights of Plaintiffs who wish to nominate candidates who
are not members of the Libertarian Party. The potential candidate need only register as a Libertarian
at any time prior to his or her nomination. The State's interests are served by this regulation. The
public interest factor favors denying Plaintiffs' request for relief in this case.
II. Motion to Dismiss Pursuant to Rule 12(b)(6)
The reliefrequested in Plaintiffs' complaint is limited to declaratory and injunctive relief.
Denial of that requested reliefleft no issue before the Court and, therefore, Defendant's motion to
dismiss was granted.
For these reasons, Plaintiffs' motion for a preliminary injunction was denied and Defendant's
motion to dismiss was granted.
Dated this
~
\D
day of October, 2014.
BY THE COURT:
~Ullo"""' l ~~~
awrence L. Piersol
nited States District Judge
ATTEST:
JOSEPH HAAS, CLE~~
BY/Z?Jfu7EPlJTY
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