Libertarian Party of South Dakota et al v. Krebs et al
Filing
115
ORDER denying 97 Motion for Summary Judgment; denying 102 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 12/19/2017. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF 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,
4:15-CV-04111-KES
ORDER DENYING CROSS MOTIONS
FOR SUMMARY JUDGMENT
vs.
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.
Plaintiffs 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
1
material facts in dispute, this court denies both motions for summary
judgment.
PROCEDURAL BACKGROUND
Plaintiffs 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.
On July 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.
Then on 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
2
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.
In 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.
FACTUAL BACKGROUND
In 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
3
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.” 1 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.
To 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:
When this lawsuit was originally filed, SDCL § 12-1-3(10) defined political
party as “a party whose candidate for Governor at the last preceding general
election at which a Governor was elected received at least two and one-half
percent of the total votes cast for Governor.”
1
4
[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.
Nominations 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 § 125-22. 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. 2
Plaintiffs 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.
In 2017, the South Dakota Legislature also passed SDCL § 12-5-1.5, which
has been in effect since July 1, 2017. Under this statute, a new political party
that does not have a candidate running for the United States Senate, United
States House of Representatives, Governor, or state Legislature can organize by
filing a declaration with at least 6,936 signatures (2.5% of the total vote for the
last gubernatorial election) by July 1 of the election year. So any new political
parties that do not have a primary candidate will have until July 1 to be
recognized and can then nominate their general election candidates for the
offices listed in SDCL § 12-5-21 during their party convention. Plaintiffs have
not challenged this statute.
2
5
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 3.
Plaintiffs 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.
Upon 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
6
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.
The 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.
Plaintiffs 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
7
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 . . . .”).
The 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.
For the 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.
8
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (“[A] party seeking summary judgment always bears the initial
responsibility of . . . demonstrat[ing] the absence of a genuine issue of material
fact.” (internal quotations omitted)). The moving party must inform the court of
the basis for its motion and also identify the portion of the record that shows
there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394, 395
(8th Cir. 1992) (citation omitted).
Once the moving party meets its initial burden, the nonmoving party
must establish “that a fact . . . is genuinely disputed” either by “citing to
particular parts of materials in the record,” or by “showing that the materials
cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P.
56(c). “The nonmoving party may not ‘rest on mere allegations or denials, but
must demonstrate on the record the existence of specific facts which create a
genuine issue for trial.’ ” Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th
Cir. 2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995)). “Further, ‘the mere existence of some alleged factual dispute between the
parties is not sufficient by itself to deny summary judgment. . . . Instead, the
dispute must be outcome determinative under prevailing law.’ ” Id. (quoting Get
Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)). For purposes of
summary judgment, the facts and inferences drawn from those facts are
9
“viewed in the light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
DISCUSSION
At the heart of the two constitutional challenges raised in plaintiffs’
Second Amended Complaint is the contention that South Dakota law restricts
third parties’ access to the ballot. First, plaintiffs argue that the March
deadline set forth in SDCL § 12-5-1 for new political parties to submit their
petitions and accompanying signatures in order to participate in South Dakota
elections violates the First and Fourteenth Amendments. Docket 85 at 9.
Second, plaintiffs contend that defendants are interpreting and enforcing SDCL
§§ 12-5-1, 12-6-1, 12-6-4, and 12-5-21, individually or in combination, “in a
manner that results in invidious discrimination against candidates seeking an
office not listed in SDCL 12-5-21” as a violation of equal protection rights
guaranteed by the First and Fourteenth Amendments. Id.
I.
Standing
Defendants argue that plaintiffs lack standing to bring their claims.
Docket 103 at 9. Plaintiffs disagree because (1) the law of the case doctrine
bars defendants’ standing argument, and (2) standing is determined at the time
a lawsuit is filed. Docket 110 at 3.
Article III standing requires a plaintiff to demonstrate an injury in fact
that is fairly traceable to the defendant’s challenged conduct and likely to be
redressed by a favorable judicial decision. See Lujan v. Defenders of Wildlife,
10
504 U.S. 555, 560-61 (1992). “The existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint is filed.” Id. at 569 n.4
(quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989)); see
also Davis v. Fed. Election Comm’n, 554 U.S. 724, 732 (2008) (framing the
requirement of standing as the “personal interest that must exist at the
commencement of the litigation” (quoting Friends of Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000))).
Focusing on the injuries to the plaintiffs as voters rather than the
plaintiffs as candidates in light of Eighth Circuit precedent, this court
previously concluded that plaintiffs had standing to bring their constitutional
challenge to SDCL § 12-5-1. Docket 18 at 4. Specifically, this court found that
the “restrictive nature of SDCL 12-5-1 impacts plaintiffs’ candidates, whom
plaintiffs support. Because SDCL 12-5-1 may unconstitutionally exclude
plaintiffs’ candidate-of-choice from the primary election, plaintiffs have
standing to challenge the law.” Id.; see also McLain v. Meier, 851 F.2d 1045,
1048 (8th Cir. 1988) (concluding that plaintiff had standing to challenge ballot
access laws because he suffered an injury as a voter that was fairly traceable to
North Dakota’s ballot access laws and his injury would be redressed if those
laws were declared unconstitutional).
While citing no authority in support, defendants maintain that “[t]he
filing of an amended complaint presenting new claims requires the Court to
‘revisit’ the determination of standing.” Docket 103 at 9 n.5. It is true that “an
amended complaint supercedes [sic] an original complaint and renders the
11
original complaint without legal effect.” In re Atlas Van Lines, Inc., 209 F.3d
1064, 1067 (8th Cir. 2000). So federal courts must resolve questions regarding
subject matter jurisdiction by examining the amended complaint. Id. But
because the first claim raised in plaintiffs’ Second Amended Complaint—the
constitutional challenge to SDCL § 12-5-1—is identical to plaintiffs’ amended
complaint and this court found sufficient facts in the amended complaint to
establish standing, the court adheres to its previous analysis. See Docket 18.
The court acknowledges, however, that its previous standing analysis took
place before the 2016 election, so the case is at a different posture today. See
Davis, 554 U.S. at 733 (recognizing that standing must exist at all stages of
review).
The individuals named as plaintiffs have standing to challenge SDCL §
12-5-1 because the law affects their abilities as South Dakota voters to support
the candidates they choose. The court disagrees with defendants’ reliance on
the fact that the individual plaintiffs’ “preferred parties have attained official
recognition and had full opportunity to present candidates” in the 2016
election. Docket 103 at 12. Part of the plaintiffs’ claimed injury is that they
could not vote for the candidate of their choosing in the 2016 election cycle.
SDCL § 12-5-1 has a cascading effect on the entire election year and its
process. So a voter’s ability to vote for the candidate of his or her choice in the
general election is restricted by any South Dakota law that prevents such
candidates from accessing the general election ballot if it did not comply with
certain primary election requirements or procedures. That is exactly what
12
plaintiffs claim happened in this case. A declaratory judgment that SDCL § 125-1’s requirements are unconstitutional would have allowed plaintiffs to place
their candidates on the November 2016 general election ballot and vote for the
candidates of their choice without having to overcome the burdens imposed by
SDCL § 12-5-1’s requirements.
As for the parties named as plaintiffs, defendants focus on the fact that
the Constitution Party and the Libertarian Party regained political party status
by the March 2016 deadline, but neither party submitted a nominating petition
to place one of their candidates on the June 2016 primary so they have not
established how their “efforts to place a candidate on the ballot were hindered.”
Docket 103 at 11-12. But again, as this court previously found, plaintiffs do
not need to attempt full compliance with a state’s ballot access scheme in order
to challenge the constitutionality of the law. See Docket 18 at 5; Williams v.
Rhodes, 393 U.S. 23, 45-46 (1968).
And while defendants urge the court to note that “South Dakota’s
statutory scheme regarding the recognition of new parties has changed during
the course of this litigation” (Docket 103 at 10), the court agrees with plaintiffs
that this appears to be more of a mootness argument raised by defendants
rather than one of standing. See Docket 110 at 4.
Defendants also argue plaintiffs lack standing to challenge SDCL §§ 125-21, 12-6-1, and 12-6-4 as an equal protection violation and state that the
individually named plaintiffs have not “presented or alleged sufficient facts to
demonstrate that they have standing to contest the classification of
13
candidates.” Docket 103 at 11-12. The court disagrees and finds the plaintiffs
do have standing to bring their equal protection claim because both parties
were restricted by South Dakota’s statutory scheme in the 2016 election. If
South Dakota allowed new political parties such as the Libertarian Party and
the Constitution Party to nominate their “primary” candidates at their party
convention in order to be placed on the general election ballot, both parties
could have had more candidates on the 2016 general election ballot. For
example, the Constitution Party nominated a candidate for both the State
House and the United States Senate at its party convention in 2016, but the
Secretary of State’s office denied these two candidates access to the general
election ballot because they were not chosen by a primary. Docket 47-5. And
plaintiffs will not be able to select their primary candidates at their party
convention in 2018, so defendants’ reliance on the Constitution Party and the
Libertarian Party already having political party status for 2018 is misplaced.
II.
Mootness
The South Dakota Legislature amended SDCL § 12-1-3(10) during the
2017 legislative session to change the definition of “political party.” Defendants
rely on a statement by plaintiffs’ expert that the new definition will make it
easier for third political parties to retain political party recognition in South
Dakota to support their argument that plaintiffs have not been injured. Docket
103 at 10-11; Docket 105 at 16-17. But plaintiffs are challenging SDCL § 12-51 and its requirements in order to gain political party status in the first place.
They are not challenging SDCL § 12-1-3(10)’s definition and how it affects a
14
political party’s ability to retain political party status. Thus, the changes to
SDCL § 12-1-3(10) have not stripped plaintiffs of federal jurisdiction for
mootness. See Rosenstiel v. Rodriguez, 101 F.3d 1544, 1548 (8th Cir. 1996)
(concluding that plaintiffs’ claim was not mooted by a change to the challenged
statute when the amendment only related to one subdivision of a larger
statutory scheme challenged by the plaintiffs).
Additionally, the fact that the Constitution Party and the Libertarian
Party received recognition as political parties in South Dakota in 2016 does not
render their claims moot. Mootness prevents a federal court from adjudicating
a lawsuit when “there is no reasonable expectation that the wrong will be
repeated.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484
U.S. 49, 66 (1987) (quotation omitted). A defendant’s “heavy” burden in seeking
to have a case dismissed for mootness requires the defendant to show that “it
is absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Id. (emphasis in original) (quoting United States v.
Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203 (1968)). Ballot
access cases often survive mootness challenges because they are capable of
repetition, yet evading review. See Norman v. Reed, 502 U.S. 279, 288 (1992);
Nat’l Right to Life Political Action Comm. v. Connor, 323 F.3d 684, 691 (8th Cir.
2003) (“Election issues are ‘among those most frequently saved from mootness
by [the capable of repetition, yet evading review] exception.’ ”) (quoting Van
Bergen v. Minnesota, 59 F.3d 1541, 1546 (8th Cir. 1995))).
15
Defendants contend that the Constitution Party and the Libertarian
Party may retain their political party status “indefinitely” due to the change to
SDCL § 12-1-3(10) (Docket 108 at 5), but the court is not persuaded by this
statement unsupported by evidence in the record. SDCL § 12-1-3(10) now
defines “political party” as a party whose candidate for any statewide office—as
opposed to a party whose candidate for governor—received 2.5% of the total
vote at the last general election. But defendants have not provided evidence to
establish it is “absolutely clear” the Constitution Party or the Libertarian Party
will always maintain political party status in South Dakota based on this
change. As explained by plaintiff’s expert, Richard Winger, when both the
Libertarian Party and the Constitution Party placed a candidate for PUC on the
general ballot in 2004, neither party received 2.5% of the total vote. Docket 111
at 2. Further, neither party has ever received 2.5% of the total South Dakota
vote for the United States Senate or United States House of Representatives,
and the only time either party’s presidential candidate received at least 2.5% of
the vote was the Libertarian Party in 2016. Id. Thus, it is very possible that
either or both political parties will lose their political party status and will then
have to utilize the SDCL § 12-5-1 petition and signature process again.
Because defendants have not met their heavy burden, plaintiffs’ claims are not
moot.
III.
Ripeness
Defendants also contend that plaintiffs’ claim is not yet ripe to the extent
plaintiffs are challenging the current mechanism to obtain new party status.
16
Docket 103 at 12 n.6, Docket 108 at 6. The ripeness doctrine prevents courts
from adjudicating alleged injuries that rest on “contingent future events that
may not occur as anticipated, or indeed may not occur at all.” 281 Care Comm.
v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011) (quotation omitted). To determine
if a claim is ripe, the court looks at the “ ‘fitness of the issues for judicial
decision’ and ‘the hardship to the parties of withholding court consideration.’ ”
Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (quoting Neb. Pub. Power
Dist. V. MidAm. Energy Co., 234 F.3d 1032, 1038 (8th Cir. 2000)). “The fitness
prong ‘safeguards against judicial review of hypothetical or speculative
disagreements.’ ” Id. (quoting Neb. Pub. Power Dist., 234 F.3d at 1038). “The
hardship prong asks whether delayed review ‘inflicts significant practical harm’
on the plaintiffs.” Id. (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S.
726, 733 (1998)).
Here, defendants’ ripeness challenge fails because plaintiffs’ alleged
injuries do not rest on contingent future events. Rather, plaintiffs have alleged
an injury that has already occurred and can occur again due to the
requirements of SDCL § 12-5-1. See 281 Care Committee, 638 F.3d at 631.
Even though they obtained new political party status in 2016, plaintiffs are
challenging the burdens imposed by the requirements to do so.
IV.
Claim One: the Right to Associate and the Right to Vote
Plaintiffs’ first claim, a facial challenge to the constitutionality of SDCL
§ 12-5-1 triggers two overlapping rights: the right to vote and the right to
associate, as this court has previously analyzed. Docket 43 at 7. Although the
17
right to vote and the right to associate are fundamental rights protected by the
First Amendment, the Constitution allows states to restrict ballot access in
order to maintain fair, honest, and orderly elections. Anderson v. Celebrezze,
460 U.S. 780, 787-88 (1983). But the United States Supreme Court has long
recognized the need to balance the interests of states in regulating elections
with the fundamental rights of citizens and the dissemination of political ideas
that third parties bring to elections. See Ill. State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 185-86 (1979). In applying this balancing test, a
court must determine if a specific provision of a state’s election laws imposes a
severe burden on the constitutional rights of the plaintiff. See Anderson, 460
U.S. at 788; Green Party of Ark. v. Martin, 649 F.3d 675, 680 (8th Cir. 2011). If
the burden is severe, the state’s regulation must be narrowly tailored and
advance a compelling state interest. Martin, 649 F.3d at 680 (quoting Timmons
v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997)).
This court thoroughly analyzed the burdens imposed by SDCL § 12-5-1
on plaintiffs’ constitutional rights in a previous opinion and concluded the
burdens are severe. See Docket 43 at 7-12. Specifically, the court found the
6,936 signature requirement coupled with the late March deadline was
“particularly troublesome” for third parties because it is expensive, difficult to
gather the signatures during the winter months in a sparsely populated state,
and people often support third party candidates after the two major political
parties have chosen their candidates during the June primary election. Id. at
11. Defendants asserted that the March deadline imposed by SDCL § 12-5-1 is
18
necessary to ensure primary ballots are ready by the June primary date. Id. at
12; Docket 26 at 13-15.
In the opinion dated June 9, 2016, this court noted that defendants
“would have shown a compelling state interest” if the only question before the
court was whether the March deadline gave the Secretary of State’s office
sufficient time to distribute the primary ballots to all the counties. Docket 43 at
13. But defendants did not explain the state’s interest in requiring new political
parties to hold a primary election selection of its gubernatorial candidates but
not for president, state attorney general, and other state-wide elected officials.
Id. Thus, the court could not determine as a matter of law whether the severe
burden imposed on plaintiffs’ constitutional rights was greater than the state’s
interest in enforcing SDCL § 12-5-1 and denied defendants’ motion for
summary judgment. Id. at 13.
In its current motion for summary judgment, defendants urge the court
to reconsider its conclusion that South Dakota’s ballot access laws impose a
severe burden on plaintiffs’ rights. Docket 103 at 14. Defendants’ argument for
reconsideration appears to rely on the fact that plaintiffs previously qualified as
a political party prior to the primary election deadline in several election years,
so the burden cannot be severe. Id. at 15. It is true that the Libertarian Party
and Constitution Party have qualified as new political parties by the March
deadline in previous election years. On this point, plaintiffs have provided
evidence that meeting such requirements is expensive and very difficult. See
Docket 36 at 2-3 (Ken Santema described how he personally drove around the
19
state at his own expense to aid the petition circulation and how the Libertarian
Party hired a paid circulator to help). Additionally, “the fact that an election
procedure can be met does not mean the burden imposed is not severe.”
Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 592 (6th Cir. 2006).
Furthermore, defendants’ argument for reconsideration misses a major
argument made by the plaintiffs—namely, new political parties should not be
subject to the requirements of SDCL § 12-5-1 at all. As plaintiffs and case law
point out, new political parties often gather their support after the two major
political parties put forth their candidates and voters realize they may not agree
with either candidate’s views. Docket 98 at 12; Docket 36 at 4; see also McLain
v. Meier, 637 F.2d 1159, 1164 (8th Cir. 1980). Thus, voters often turn to third
political parties later in the election cycle, after the primary election. But under
SDCL § 12-5-1, no third party candidate running for an office not listed in
SDCL § 12-5-21 will be found on the November general election ballot unless
that candidate submits its 6,936 signatures by the last Tuesday in March and
then participates in the South Dakota primary election in June. Thus, the
court is not persuaded by defendants’ attempt to reconsider the severity of the
law’s burdens.
Because SDCL § 12-5-1 imposes severe burdens on plaintiffs’
constitutional rights, it is subject to strict scrutiny. In other words, the
defendants have the burden to demonstrate that the ballot access law is
narrowly tailored to serve a compelling state interest. Moore v. Martin, 854 F.3d
1021, 1026 (8th Cir. 2017), cert. denied, 2017 WL 3324827 (Oct. 10, 2017).
20
In Moore, the Eighth Circuit Court of Appeals examined Arkansas
election laws that set the filing deadline for potential independent candidates.
Moore, 854 F.3d at 1023. Under Arkansas law, independent candidates were
required to submit petitions and accompanying elector signatures in March,
which was the same time political party candidate petitions were due, even
though the independent candidates did not have to run in the June primary
election like the political party candidates. Id. at 1023-24. The parties filed
cross-motions for summary judgment, and the district court granted summary
judgment in favor of Martin, the Arkansas Secretary of State. Id. at 1024. The
district court concluded that even though the March deadline was a
substantial burden on Moore’s rights, Arkansas had a compelling state interest
in administering the general election ballot and the March deadline was
narrowly tailored to serve that interest. Id. at 1025.
The Eighth Circuit, however, reversed the district court in part, holding
that the district court erred in granting summary judgment in favor of the
Secretary of State. Id. at 1028. While noting the district court correctly found
the March deadline to be a burden on the plaintiff’s constitutional rights and
Arkansas did have a compelling interest, the Eighth Circuit found a “genuine
dispute of material fact [as to] whether the March 1 deadline [was] narrowly
drawn to serve that compelling interest.” Id. at 1026-27.
The questions here are whether South Dakota has 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
21
access laws are narrowly tailored to further that state interest. Like Moore, the
record here is unclear regarding material facts on this question. While
defendants argue at length that the burdens imposed by SDCL § 12-5-1 are not
severe, they hardly explain the specific regulatory interests the ballot access
law furthers. See Docket 103 at 22-23. Defendants correctly note the important
state interest in avoiding voter confusion, ballot overcrowding, and frivolous
candidates on the ballot, in addition to effective administration of the South
Dakota ballot. Docket 103 at 21-22; Docket 108 at 12-13. But other than these
broad, generalized reasons, defendants have not explained why a 2.5%
signature requirement by the last Tuesday in March is necessary for new
political parties. And to the extent that defendants have produced evidence in
support of South Dakota’s compelling state interests or shown how the South
Dakota ballot access laws are narrowly tailored to further those interests,
plaintiffs have disputed that evidence. Thus, because there is a genuine issue
of material fact regarding this issue, both the plaintiffs’ and defendants’
motions for summary judgment on plaintiffs’ first claim are denied.
V.
Claim Two: Equal Protection
Plaintiffs’ second claim challenges defendants’ interpretation of several
South Dakota ballot access laws as a violation of the equal protection clause.
Plaintiffs have alleged that SDCL § 12-5-1 as it interacts with SDCL § 12-5-21
causes candidates for South Dakota political offices to be treated differently.
South Dakota law requires candidates for the United States Senate, United
States House of Representatives, Governor, and all state legislative seats to
22
participate in the primary election in order to appear on the general election
ballot and defendants have cited SDCL § 12-6-1 and § 12-6-4 in support of
this. See Docket 103 at 23-24. 3 But candidates for lieutenant governor,
attorney general, secretary of state, state auditor, state treasurer,
commissioner of school and public lands, public utilities commissioner, and
presidential electors and national committeeman and national
committeewoman of the party during presidential election years can be
nominated by party convention. See Docket 108 at 17 (citing SDCL § 12-5-21).
This means that candidates for offices listed in SDCL § 12-5-21 (the convention
candidates) can be placed on the ballot if the new political parties submit their
signatures by July 1, 2018, 4 while all other candidates (the primary
candidates) have to submit their signatures by the last Tuesday of March.
Defendants argue South Dakota’s nomination process does not violate
the Equal Protection Clause because it treats candidates of established political
parties and candidates of new political parties the same. Docket 108 at 18. But
“the United States Supreme Court has previously invalidated an election law
scheme despite the scheme treating all parties equally because, in application,
the equal treatment had a disparate impact.” Libertarian Party of N.D. v. Jaeger,
659 F.3d 687, 702 (8th Cir. 2011) (citing Williams, 393 U.S. at 34); see also
SDCL § 12-6-1 provides generally “[t]he provisions of this chapter shall apply
to the election to party office and for the nominations of political and
nonpolitical candidates for public offices except as may be otherwise provided.”
4 The deadline will be be July 1 under the plain language of newly-enacted
SDCL § 12-5-1.5, but only if the new political party submits its signatures in
support of convention candidates and does not also run a primary candidate.
3
23
Jenness v. Fortson, 403 U.S. 431, 442 (1971) (“Sometimes the grossest
discrimination can lie in treating things that are different as though they were
exactly alike . . . .”).
The Supreme Court has applied the standards of the Equal Protection
Clause to statutory provisions on elections for several decades, long ago
stating:
The right to vote freely for the candidate of one’s choice is of the
essence of a democratic society, and any restrictions on that right
strike at the heart of representative government. And the right of
suffrage can be denied by a debasement or dilution of the weight of
a citizen’s vote just as effectively as by wholly prohibiting the free
exercise of the franchise.
Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Williams, 393 U.S. at 34
(holding that the totality of Ohio’s restrictive election laws burdened the right to
vote and right to associate as an invidious discrimination in violation of the
Equal Protection Clause).
To determine if a state law violates the Equal Protection Clause, courts
must consider “the character of the classification in question[,] the individual
interests affected by the classification[,] and the governmental interests
asserted in support of the classification.” Dunn v. Blumstein, 405 U.S. 330, 334
(1972). But courts must go one step further in the equal protection context,
namely by determining “whether the law disadvantages one group over another
so as to result in unequal treatment and whether this unequal treatment is
justified by a compelling interest.” Libertarian Party of N.D., 659 F.3d at 702.
24
In Illinois State Board of Elections, the Supreme Court analyzed the effect
of the Illinois election code’s classification on new parties and independent
candidates under the Equal Protection Clause. 440 U.S. at 183. In its equal
protection analysis, the Court discussed how ballot access restrictions burden
the right to associate and the right to vote so such restrictions must serve a
compelling state interest. Id. at 184. In other words, the Supreme Court’s
analysis under the Equal Protection Clause was the same analysis this court
utilized for plaintiffs’ first claim in this case. The court finds that the two
claims—a violation of plaintiffs’ First and Fourteenth Rights and a violation of
plaintiffs’ equal protection rights—are scrutinized almost identically.
Because this equal protection claim inherently hinges on the outcome of
plaintiffs’ first claim challenging the constitutionality of SDCL § 12-5-1 and
questions of fact remain on that claim, the court cannot conclude as a matter
of law that South Dakota’s disparate nominating process is a violation of
plaintiffs’ equal protection rights. Defendants also have not produced sufficient
evidence to establish whether South Dakota’s disparate nominating process is
justified by a compelling state interest. Thus, plaintiffs’ and defendants’
motions for summary on plaintiffs’ equal protection claim are denied.
CONCLUSION
The court finds that there are genuine issues of material fact in dispute
regarding both claims that preclude entry of summary judgment for either
party. A trial court should act with caution in deciding whether to grant
summary judgment and may deny summary judgment “in a case where there is
25
reason to believe that the better course would be to proceed to a full trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Thus,
IT IS ORDERED:
1.
Plaintiffs’ motion for summary judgment (Docket 97) is denied.
2.
Defendants’ motion for summary judgment (Docket 102) is denied.
DATED this 19th day of December, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
26
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?