Libertarian Party of South Dakota et al v. Krebs et al

Filing 43

MEMORANDUM OPINION AND ORDER denying 25 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 6/9/16. (SLW)

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,

4:15-CV-04111-KES

MEMORANDUM OPINION AND
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Plaintiffs,
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 bring suit against defendants seeking in part a declaratory
judgment that South Dakota’s ballot access laws for new political parties are
unconstitutional. Defendants move for summary judgment, arguing that South
Dakota’s ballot access laws place reasonable and nondiscriminatory
restrictions on political parties. The court denies defendants’ motion.

BACKGROUND
To be a political party in South Dakota, the party’s candidate for
governor in the last gubernatorial election must have won at least 2.5% of the
votes cast. SDCL 12-1-3(10). If a party does not meet the 2.5% requirement, it
must go through the process outlined in SDCL 12-5-1 that discusses the
organization and dissolution of a political party. See SDCL 12-5-1. Under the
statute, a new political party may gain state recognition by filing with the
South Dakota Secretary of State a written declaration that contains the party’s
proposed name and a brief statement of the party’s principles. Id. The
declaration must be signed by “at least two and one-half percent of the voters
of the state as shown by the total vote cast for Governor at the last preceding
gubernatorial election.” Id. A voter may sign the declaration at any time as long
as the signature is not more than a year old at the time of filing. Id. For a party
to appear on the June primary ballot, the declaration must be submitted by the
last Tuesday in March at five p.m. Id.
In 2012, the Libertarian Party and the Constitution Party met the March
deadline and filed valid declarations with the Secretary of State. Docket 19 at
5. This meant both parties appeared on the primary and general election ballot
in 2012 and 2014. During the 2014 general election, neither party had
candidates for governor, so neither party received the 2.5% of votes necessary
to maintain its political party status. Docket 28 at 2. Because both parties seek
participation in the 2016 South Dakota primary election, this year both parties
filed new declarations with the South Dakota Secretary of State. Docket 41 at
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1-2. Based on the procedures set out in SDCL 12-5-1, declarations were due
March 29 and needed to be signed by 6,936 voters. Docket 28 at 5. Only the
Constitution Party met both requirements. Docket 41 at 1-2. Both parties,
however, have met the filing requirements of SDCL 12-5-1 in the past. The
Libertarian Party achieved political party status in 1994, 1996, 1998, 2000,
2002, 2004, 2006, 2012, and 2014. Docket 19 at 5. The Constitution Party
achieved political party status in 2004, 2006, 2008, 2010, 2012, and 2014. Id.
After defendants filed their answer, plaintiffs learned that new political
parties may select some of their general election candidates through a state
convention instead of a primary vote. Docket 33 at 1-5. In their answer,
defendants explained that SDCL 12-5-21 allows new political parties to
nominate via state convention candidates for the following positions: lieutenant
governor, attorney general, secretary of state, state auditor, state treasurer,
commissioner of school and public lands, public utilities commissioner,
national committeeman of the party, national committeewoman of the party,
and presidential electors. Docket 21 at 3; SDCL 12-5-21. Under this procedure,
the party would need to file its declaration in time to give the Secretary of State
30 days’ notice of the time and place of the party’s convention. Docket 26 at
3-4; SDCL 12-5-17. Because a party must hold its convention in time to certify
its nominees with the South Dakota Secretary of State by the second Tuesday
in August (SDCL 12-5-22), a new political party in 2016 could file its
declaration on July 10 and still have its candidates for offices identified in
SDCL 12-5-21 placed on the general election ballot. See Docket 26 at 3. This
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means new political parties potentially have two deadlines for filing their
party’s declaration: March or July. Plaintiffs assert this is a new and different
interpretation of SDCL 12-5-1 than had been followed previously by South
Dakota’s Secretaries of State. Docket 33 at 2. Richard Winger explains in
affidavits submitted by plaintiffs that 41 other states authorize previously
unqualified parties to place all its nominees on the general election ballot
without a primary. Docket 40 at 1. He also states that no other state sets a
different deadline for ballot access for attorney general or lieutenant governor
than governor. Docket 40 at 2. He describes this process as “irrational.” Id.
Plaintiffs initiated this action on June 15, 2015. Docket 1. On
January 26, 2016, the court granted plaintiffs’ motion to amend the complaint
and denied defendants’ motion to dismiss the case or change venue. Docket 18.
Plaintiffs filed their amended complaint on January 28, 2016. Docket 19 at 4.
Defendants now move for summary judgment, and plaintiffs oppose the
motion.
LEGAL STANDARD
Summary judgment is appropriate 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). The moving party can meet this
burden by presenting evidence that there is no dispute of material fact or by
showing that the nonmoving party has not presented evidence to support an
element of its case on which it bears the ultimate burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary judgment, “[t]he
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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, Mo., 415 F.3d 908, 910
(8th Cir. 2005) (quoting Krenik v. Cty of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995)).
Summary judgment is precluded if there is a factual dispute that could
affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). For purposes of a summary judgment motion, the court views the
facts and the inferences drawn from such facts “in the light most favorable to
the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986).
DISCUSSION
The right to vote holds a sacred place in our nation’s history. “It is
beyond cavil that ‘voting is of the most fundamental significance under our
constitutional structure.’ ” Burdick v. Takushi, 504 U.S. 428, 433 (1992)
(quoting Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184
(1979)). “No right is more precious in a free country than that of having a voice
in the election of those who make the laws under which, as good citizens, we
must live. Other rights, even the most basic, are illusory if the right to vote is
undermined.” Williams v. Rhodes, 393 U.S. 23, 31 (1968) (internal citation
omitted). On the other hand, the right to vote is not absolute. The states hold a
broad power to regulate the time, place, and manner of elections. Green Party
of Ark. v. Martin, 649 F.3d 675 (8th Cir. 2011) (quoting U.S. Const. art. I, § 4,
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cl. 1; Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451
(2008)). “Common sense, as well as constitutional law, compels the conclusion
that government must play an active role in structuring elections . . . ‘if some
sort of order, rather than chaos, is to accompany the democratic process.’ ”
Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
Because of the inherent tension between the individual’s right to vote
and the state’s power to regulate elections, the Supreme Court has set forth a
balancing test that considers the interests of both the voter and the state. Id. at
432-34. As explained by the Eighth Circuit Court of Appeals, a court analyzing
ballot access laws must:
weigh the character and magnitude of the burden the State’s rule
imposes on those rights against the interests the State contends
justify that burden, and consider the extent to which the State’s
concerns make the burden necessary. Regulations imposing severe
burdens on plaintiffs’ rights must be narrowly tailored and
advance a compelling state interest. Lesser burdens, however,
trigger less exacting review, and a State’s important regulatory
interests will usually be enough to justify reasonable,
nondiscriminatory restrictions.
Martin, 649 F.3d at 680 (quoting Timmons v. Twin Cities Area New Party, 520
U.S. 351, 357 (1997)). Under this analysis, the court first considers and defines
the burdens imposed by the challenged law and then weighs the burdens
against the state’s regulatory interests. The degree of the burden determines
the extent the challenged law must advance the state’s interests. Laws placing
severe burdens on the right to vote receive greater judicial scrutiny than laws
imposing lesser burdens.

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I.

Constitutionality of SDCL 12-5-1
A.

Weighing of Burdens

In general, all ballot access laws impose a burden on “two different,
although overlapping, kinds of rights—the right of individuals to associate for
the advancement of political beliefs, and the right of qualified voters, regardless
of their political persuasion, to cast their votes effectively.” Williams, 393 U.S.
at 30. This does not mean, however, that all ballot access laws are subject to
strict scrutiny and that each regulation must be narrowly tailored to advance a
compelling state interest. Brudick, 504 U.S. at 433. The court must analyze the
unique burdens imposed by the challenged legislation and determine whether
or not the burden is severe. See id. at 434. A burden is severe if it “operate[s] to
freeze the political status quo . . . .” Martin, 649 F.3d at 685.
The Eighth Circuit Court of Appeals and the United States Supreme
Court have addressed the burden issue in a series of opinions. In McLain v.
Meier, 637 F.2d 1159, (8th Cir. 1980) (McLain I), the Eighth Circuit Court of
Appeals analyzed a North Dakota statute that regulated how candidates for
new political parties could appear on the state’s ballot. Id. at 1162. In North
Dakota, new political parties were required to file a petition signed by 15,000
electors by June 1 of the primary election year. Id. At the time the Eighth
Circuit decided the case, 15,000 signatures equated to 3.3% of North Dakota’s
electorate. Id. The Eighth Circuit noted that the June 1 deadline—set 90 days
before the primary election—was “particularly troublesome” because voters
look to third party candidates largely when they are dissatisfied with the
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“platforms and candidates put forward by the established political parties.” Id.
at 1164. The Eighth Circuit also found the 15,000 signature requirement
“significantly higher than that required in most states,” noting the Supreme
Court has stated a 1% requirement is “within the outer boundaries of support
the State may require before according political parties ballot position.” Id. at
1163-64 (quoting Am. Party of Tex. v. White, 415 U.S. 767, 783 (1974)).
Ultimately, the Eighth Circuit held that North Dakota’s ballot access laws were
unconstitutional. Id. at 1163; see also Anderson v. Celebrezze, 460 U.S. 780,
806 (1983) (holding as unconstitutional an Ohio law requiring presidential
candidates to file their petitions by March 20); MacBride v. Exon, 558 F.2d 443,
449-50 (8th Cir. 1977) (holding as unconstitutional a petition deadline set 90
days before the state’s primary).
In McLain v. Meier, 851 F.2d 1045 (8th Cir. 1988) (McLain II), the Eighth
Circuit revisited North Dakota’s ballot access laws. North Dakota amended its
ballot access laws in response to McLain I to require new political parties to
obtain 7,000 signatures 55 days before the primary election in June. Id. at
1047. Although the Eighth Circuit ultimately upheld the constitutionality of
North Dakota’s statutes, the court found that the 7,000 signature requirement
combined with the 55-day deadline produced a “burden of some substance” on
the challenger’s right to vote. Id. at 1049. The Eighth Circuit found North
Dakota’s statute constitutional because “the filing deadline for third parties
[was] no more burdensome on [the challenger’s] rights than [was] necessary to
support the State’s interests.” Id. at 1050.
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In Burdick, 504 U.S. at 430, the Supreme Court analyzed the burden
imposed by Hawaii’s prohibition on write-in voting. Although Burdick did not
explicitly involve a challenge to the state’s ballot access laws, the Court
addressed the operation and effect of the laws. Id. at 434-37. The Court
explained that a filing deadline set two months before the state’s primary was
reasonable because “little weight” is given to candidates’ interests and their
supporters’ interests when they delay in making a decision to appear on the
ballot. Id. at 437. The Court ruled a filing deadline set two months before the
state’s primary resulted in a “very limited” burden. Id.
In Martin, 649 F.3d at 686-87, the Eighth Circuit Court of Appeals
upheld a state law that required political parties to receive at least 3% of the
votes cast for governor or president in order to maintain its political party
status. Plaintiffs argued in part that the 3% requirement created a severe
burden because it required the Green Party to conduct a costly petition drive
every two years in order to gather the signatures necessary to regain its
political party status. Id. at 683. The court rejected plaintiffs’ argument and
explained that a number of factors, including the high costs of campaigning,
“make it difficult for third parties to succeed in American politics.” Id. The
court stated, “Although the Green Party may incur some costs because of its
choice to hire individuals to collect signatures, the ballot access scheme does
not impose severe burdens on the Green Party . . . .” Id. The court concluded
its analysis of the burdens imposed by the law by asking whether Arkansas’s
ballot access laws as a whole “operate[d] to freeze the political status quo . . . .”
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Id. at 685. The Eighth Circuit noted the Green Party had secured ballot access
in 2006, 2008, and 2010. Id. And Arkansas’s statutory scheme consisted of
multiple paths to the general election ballot. Id. Ultimately, the court concluded
that “although the burdens imposed by [Arkansas’s ballot access laws] are not
trivial, they are not severe.” See id. at 685 (citing Timmons, 520 U.S. at 363).
Plaintiffs here argue the “character and magnitude of the burden”
imposed by SDCL 12-5-1 is severe. Id.; see Docket 33 at 10-22. Plaintiffs assert
the combined effect of the “last Tuesday in March” deadline [March 29 as
applied] with the 2.5% signature requirement [6,936 signatures as applied]
places a severe burden on their constitutional rights. Plaintiffs emphasize in
their brief that both of these burdens are exacerbated because of the expense
associated with gathering signatures, the difficulty in generating public interest
in a third party candidate before the major parties have chosen their nominee,
and the fact that signatures would need to be gathered during the winter
months in a sparsely populated state. Docket 33 at 7-19.
The cases most analogous to the facts before this court are McClain I and
McClain II. The plaintiffs in McClain I challenged a statute requiring new
political parties to file a petition with 15,000 signatures by June 1. The Eighth
Circuit concluded the restrictions were “unnecessarily oppressive” and
“unconstitutional.” McClain I, 637 F.2d at 1163. The statute in McClain II
required petitions to be filed with 7000 signatures by approximately mid-April,
which was 55 days before the state’s June primary election. Although the
Eighth Circuit upheld these restrictions, it found that the burden imposed by
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the law was of “some substance,” and the court subjected the statute to strict
scrutiny. McLain II, 851 F.2d at 1049. Here, the time burden imposed on
plaintiffs is greater than the time burden imposed in McLain II because new
political parties need to submit their declarations by late March-70 days before
South Dakota’s primary election day. This early deadline is particularly
oppressive because, as the court noted in McLain I, a third party candidate’s
viability is largely determined after the major political parties have chosen their
candidates and platforms. People often look to third party candidates when
they are dissatisfied with the major parties’ nominees. The March deadline
forecloses a candidate’s ability to run for office before the major parties have
selected their nominees. Additionally, the deadline of March 29 requires
petition circulation to occur during the cold, winter months instead of the
springtime as occurred under McLain I’s June 1 deadline. While the signature
burden here of 2.5% [6,936] signatures is comparable to the signature burden
in McLain II and is less than in McLain I, the court finds that the late March
time burden coupled with the substantial signature requirement is particularly
troublesome. The reasoning of McLain I and McClain II supports a conclusion
that South Dakota’s ballot access laws place a severe burden on plaintiffs’
rights.
Although defendants argue for a different result based on Burdick and
Martin, both cases are distinguishable. In Burdick, the Supreme Court held
that Hawaii could prohibit write in voting, but only in light of the state’s
generous ballot access laws. See Burdick, 504 U.S. at 430. In Hawaii,
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candidates could appear on the primary ballot by filing nominating papers with
15 to 25 signatures 60 days before the primary election. Id. at 436. South
Dakota does not have an equivalent option. In Martin, the Eighth Circuit Court
of Appeals upheld an Arkansas statute that required political parties to receive
at least 3% of the vote cast for president or governor in order to retain their
political party status. Martin, 649 F.3d at 678, 687. The court based its
decision, in part, on “the many alternative paths Arkansas provides to the
ballot . . . .” Id. at 687. For example, new political parties could secure ballot
access for their presidential candidate by submitting a petition in August
signed by 1,000 registered Arkansas voters. Id. at 678; Ark. Code Ann.
§ 7-8-302(5)(B). South Dakota does not have an equivalent statute. This court
finds that both Burdick and Martin are distinguishable from the current case
and that the burden imposed by SDCL 12-5-1 is severe.
B.

South Dakota’s Regulatory Interests

The Supreme Court recognizes that state governments must play a
central role in organizing elections. Burdick, 504 U.S. at 433. The states ensure
that elections are fair, honest, and efficient. Id. Defendants assert that
SDCL 12-5-1 is necessary to ensure that the primary ballots are ready for the
state primary election. Docket 26 at 13-15. This year the deadline imposed by
SDCL 12-5-1 is March 29, 2016. The state’s primary is scheduled for June 7,
2016. Because absentee voting begins on April 22, the primary ballots must be
printed and with the county auditors’ offices by April 20, 2016. This gives the
Secretary of State’s Office 22 days to review the number of signatures on the
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declaration, confirm that the declaration is in the proper form, print the
primary ballots, and ship the ballots to the county auditors. Id.
If the only question before the court was whether the March deadline
gave the Secretary of State enough time to distribute the primary ballots to the
individual county clerks, South Dakota would have shown a compelling state
interest. Defendants have not explained, however, what interest South Dakota
has in requiring new political parties to hold a primary election for their
gubernatorial candidates. Any argument for why primary elections are
necessary for gubernatorial candidates is undermined by the fact that South
Dakota apparently does not have a similar interest in the party’s selection of
candidates for president, state attorney general, and other state-wide elected
officials. Although South Dakota must play a central role in ensuring its
elections are organized, fair, and efficient, the state has given no reason why its
process for selecting a party’s candidate for governor is more organized, fair, or
efficient, than its process for selecting a party’s candidate for president.
Defendants have given no reason why third party candidates for governor must
participate in the primary election. Because the court cannot determine as a
matter of law on this record that the burden imposed on the plaintiffs’ right to
ballot access is greater than South Dakota’s interest in enforcing SDCL 12-5-1,
defendants’ summary judgment motion is denied.
II.

Equal Protection Challenge
Although not explicitly stated, plaintiffs’ brief appears to argue that

SDCL 12-5-1 violates the Equal Protection Clause of the Fourteenth
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Amendment. Plaintiffs argue it is “irrational,” “discriminatory,” and
“unreasonable” for South Dakota to treat candidates running for the
SDCL 12-5-21 offices differently from all other candidates. Docket 33 at 3,
20-22. The Supreme Court in Illinois State Board of Elections v. Socialist
Workers Party, 440 U.S. 173 (1979) dealt with a similar situation. There, the
Illinois Election Code provided two different paths for new political parties and
independent candidates to appear on the ballot. Id. at 175-77. If the candidates
were running for a statewide office, they needed to obtain 25,000 signatures
from qualified voters. Id. at 175. If, however, candidates were running for a
local office, they needed to get signatures from “5% of the number of persons
who voted at the previous election for offices of the particular subdivision.” Id.
at 176. This meant candidates running for a local office in Chicago had to
collect over 10,000 more signatures than candidates running for statewide
office. Id. at 176-77. In analyzing these statutes, the Supreme Court held that
the disparate treatment of the candidates violated the Equal Protection Clause
of the Fourteenth Amendment. Id. at 187. The Court noted that “[t]he Illinois
Legislature has determined that its interest in avoiding overloaded ballots in
statewide elections is served by the 25,000-signature requirement. Yet [Illinois]
has advanced no reason, much less a compelling one, why the State needs a
more stringent requirement for Chicago.” Id. at 186. Because Illinois did not
have a compelling reason to discriminate against candidates based on their
geographic location, the Court held that the Illinois Election Code was
unconstitutional. Id. at 187.
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Plaintiffs here argue the distinction between candidates for the offices
listed in SDCL 12-5-21 and all other candidates—including candidates for
governor—is discriminatory. New political parties are able to pick their
presidential candidates and most candidates for statewide office at a state
convention. All other candidates must be placed on the primary ballot. The
discrepancy means that if a declaration is submitted in July, candidates
running for president and lieutenant governor can be placed on the ballot if
nominated during a party convention, but candidates for governor cannot.
Gubernatorial candidates must meet an earlier deadline by having their party’s
declaration submitted in March. Similar to the plaintiffs in Illinois State Board
of Elections, candidates in South Dakota are being treated differently based on
which office they seek, and similar to the defendants in Illinois State Board of
Elections, defendants here have “advanced no reason, much less a compelling
one” for why the distinction is necessary. As explained by the affidavit of
Richard Winger, no other states use “such a peculiar election law provision.”
Docket 40 at 2. Because South Dakota has not given any reason for the
disparate treatment, defendants’ motion for summary judgment is denied.
CONCLUSION
South Dakota’s ballot access laws impose a severe burden on third
parties and their candidates. Although South Dakota has an important
regulatory interest in ensuring its elections are fair and efficient, defendants
have advanced no reason why primary elections are necessary for some

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candidates but not others. Because defendants have not given any reason for
the disparate treatment, summary judgment is denied.
DATED this 9th day of June, 2016.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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