On January 28, the South Dakota Senate State Affairs Committee amended SB 69 to make ballot access more difficult for independent candidates. Furthermore, the committee defeated an amendment that would have eased the deadline for a newly-qualifying party to submit its petitions, and approved the original part of the bill that moves the new party deadline from March to February. The votes on these amendments were all party-line, with all Republicans voting in favor of making ballot access more restrictive, and all Democrats voting in favor of easing ballot access.

As amended, SB 69 says that no one can sign an independent candidate’s petition except voters who are registered “independent.” The bill also lowers the number of signatures needed for an independent, from 1% of the last gubernatorial vote, to 1% of the number of registered independents. The number of signatures for a statewide independent for 2016 would fall from 2,775 to 862. However, the net effect of the change would be to make ballot access worse for independents. Only 16% of South Dakota voters are registered “independent.” Going out on the street with a petition in which only 16% of the registered voters are eligible to sign would be difficult: effective petitioning depends on speed, and having to ask every person encountered if he or she is a registered independent would be perceived as nosy, and would be time-consuming. Also, not everyone knows whether or not he or she is registered “independent”. It’s especially likely that even well-informed voters wouldn’t know if they are “Nonpartisan” or “independent.”

The bill is flawed because it won’t let “Nonpartisan” voters sign for an independent candidate, nor could voters who are registered members of unqualified parties sign. “Nonpartisan” voters are those who didn’t fill out the part of the voter registration form that asks about affiliation; “independent” voters are those who checked the “independent” box. Currently South Dakota has 86,110 independent voters, 17,505 Nonpartisan voters, and 2,569 members of unqualified parties.

Another flaw is that the bill doesn’t specify how to calculate the number of registered voters, because the state puts out a voter registration tally every month, and the bill doesn’t specify which month’s tally should be used to determine 1% of the registered independents.

Only two states ever banned registered members of qualified parties from signing for an independent candidate, Louisiana before 1949, and Arizona 1993-1999. The Arizona ban on party members signing an independent candidate petition was invalidated in Campbell v Hull. The theory that says states can’t prohibit registered voters from signing a ballot access petition for a candidate that they could vote for if the candidate were on the ballot was set forth in Socialist Workers Party v Rockefeller, a 1970 three-judge district court decision that was summarily affirmed by the U.S. Supreme Court. The New York law didn’t ban party members from signing for an independent candidate, but it did ban voters from signing for an independent candidate if that voter hadn’t been registered in the preceding general election. That prohibition excluded voters who only came of age since the new election, voters who moved into New York state since the last election, and voters who had become citizens since the last election. The New York court found no state interest in stopping such new voters from signing for an independent.

The Committee rejected an amendment by Senator Bernie Hunhoff (D-Yankton) to move the deadline for a newly-qualifying party from March to June (that amendment said new parties would nominate by convention). Instead the majority voted to set that deadline in February, even though in 1984 the state was sued over the old February deadline and admitted the deadline was too early, and settled that part of the case without the need for a judicial decision. The committee was told about the 1984 precedent, but it chose to act anyway.

South Dakota’s legislature has been very hostile to independent candidates recently. In 2007 it moved the non-presidential independent deadline from June to April, even though the primary is in June and case law is unanimous that independent candidate petition deadlines can’t be earlier than the primary.