On February 13, the South Dakota House State Affairs Committee voted 7-5 to pass HB 1234. It moves the independent candidate petition deadline (for office other than president) from June to April.

South Dakota already was one of only six states in 2008 that had no independent or minor party candidates for either house of Congress.

The bill is sponsored by Rep. Mark Kirkeby (R-Rapid City) and co-sponsored by 12 Republicans in the House, 4 Democrats in the House, 5 Republican Senators, 2 Democratic Senators, and the only Independent Senator, Tom Dempster (he is a registered Republican, but ran in 2008 as an independent because his paperwork to run in the Republican primary had been defective and he was kept off the primary ballot).

The bill would probably be held unconstitutional, since it sets a deadline substantially earlier than the June primary. The First, Third, Fourth, Seventh, Ninth, and Eleventh Circuits have all struck down non-presidential independent deadlines that were earlier than primary day or the day before primary day. Also US District Courts have struck down such deadlines in certain states not in the above-named circuits, such as Ohio and Kentucky in the Sixth, and Arkansas in the Eighth. The Arkansas decision, in 1976, by a 3-judge U.S. District Court, was summarily affirmed by the U.S. Supreme Court.

In the House Committee, the 5 “No” votes were cast by 3 Republicans (Timothy Rave, Kristi Noem, and Manny Steele), and 2 Democrats (Marc Feinstein and Larry Lucas). The Secretary of State, Chris Nelson, is opposed to the bill and predicts that if passed, it will be held unconstitutional.