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

Filing 68

MEMORANDUM OPINION AND ORDER denying 60 Motion for Permanent Injunction. Signed by U.S. District Judge Karen E. Schreier on 8/15/16. (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 PLAINTIFFS’
MOTION FOR PERMANENT
INJUNCTION

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 brought suit against defendants seeking in part a declaratory
judgment that SDCL 12-5-1 is unconstitutional. Plaintiffs now move for a
permanent injunction that would enjoin Secretary of State Shantel Krebs from
continuing to refuse to place the names of Kurt Evans and Wayne Schmidt on
the upcoming general election ballot as Constitution Party Candidates for the

office of United States Senate and State House, respectively. The court denies
plaintiffs’ motion.
BACKGROUND
In 2012, the Libertarian Party and the Constitution Party sought to
become recognized political parties in South Dakota. This required both parties
to comply with SDCL 12-5-1. The statute states:
A new political party may be organized and participate in the
primary election by filing with the secretary of state not later than
the last Tuesday of March at five p.m. prior to the date of the
primary election, a written declaration 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 .
...
SDCL 12-5-1. Both parties met the March deadline and filed valid declarations
with the Secretary of State. Docket 19 at 5. 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. In 2016, both parties filed new declarations with the South Dakota Secretary
of State. Docket 41 at 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. Both parties successfully had over 6,936 voters sign their
petitions, and both parties are now recognized political parties in South
Dakota. Docket 45 at 2.
Plaintiffs initiated this action on June 15, 2015, seeking to have their
parties’ candidates for president placed on the November general election
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ballot. 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. Plaintiffs, in their amended complaint,
allege that “South Dakota’s deadline for a new or previously unqualified party
to qualify to place its presidential candidates on the general election ballot with
the party label is one of the earliest in the nation.” Docket 19 at 6. Plaintiffs
also allege that “[e]ach of the two Plaintiff Parties fully intends to nominate a
presidential candidate” in this upcoming election. Id. at 7. In their prayer for
relief section of the amended complaint, plaintiffs seek a declaratory judgment
that the deadlines set forth in SDCL 12-5-1 for new political parties to submit
signed petitions to organize and participate in the elections be declared
unconstitutional and that defendants be enjoined from enforcing those
deadlines.
On March 3, 2016, defendants moved for summary judgment. Docket 25.
This court denied the motion. Docket 43. The parties have now filed new
motions for summary judgment, and plaintiffs have filed a motion for a
permanent injunction.
DISCUSSION
Plaintiffs seek a permanent injunction that would order the Secretary of
State to place the two Constitution Party candidates on the November general
election ballot. Kurt Evans seeks to appear as a candidate for the United States
Senate, and Wayne Schmidt seeks to appear as a candidate for South Dakota
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State House. In their amended complaint, plaintiffs challenge the
constitutionality of SDCL 12-5-1. To be successful on their motion for a
permanent injunction, this court would have to address the constitutionality of
SDCL 12-5-21.1 But plaintiffs did not challenge the constitutionality of SDCL
12-5-21 in their amended complaint. And in their prayer for relief, plaintiffs did
not seek declaratory or injunctive relief related to ballot access for candidates
who were not identified as those who could be nominated by a party state
convention under SDCL 12-5-21. Plaintiffs’ amended complaint only sought to
have presidential candidates placed on the general election ballot. This court
finds that plaintiffs’ motion for a permanent injunction compelling the
Secretary of State to place the names of a United States Senate candidate and
a state House of Representative candidate on the November ballot lies outside
of the issues raised in the amended complaint. Thus, plaintiffs’ motion for a
permanent injunction to enjoin Secretary of State Shantel Krebs from
continuing to refuse to place the name of Kurt Evans and Wayne Schmidt on
the upcoming general election ballot as Constitution Party candidates is
denied.

The text of the statute states:
The state convention shall nominate candidates for lieutenant
governor, attorney general, secretary of state, state auditor, state
treasurer, commissioner of school and public lands, and public
utilities commissioner and in the years when a President of the
United States is to be elected, presidential electors and national
committeeman and national committeewoman of the party.
SDCL 12-5-21
1

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CONCLUSION
Plaintiffs’ motion for a permanent injunction is denied because the relief
requested was not raised in plaintiffs’ amended complaint. Good cause
appearing, it is
ORDERED plaintiffs’ motion (Docket 60) is denied.
DATED this 15th day of August, 2016.
BY THE COURT:

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

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