On August 28, U.S. District Court Judge Lawrence Piersol upheld a South Dakota law that tells parties they cannot nominate a non-member. He ruled from the bench at the conclusion of the oral argument. Libertarian Party of South Dakota v Gant, 14-cv-4132. The judge said it is not a severe burden on a party to be told that it can’t nominate a non-member.

The judge relied partly on Storer v Brown, which upheld a California law saying no one could be an independent candidate if he or she had been a member of a party within the preceding year. But Freedom of Association has no bearing on that issue, and later opinions of the U.S. Supreme Court had emphasized that parties have constitutional protection to nominate whom they wish. In 2000, the U.S. Supreme Court said in California Democratic Party v Jones, “Our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party ‘selects a standard bearer who best represents the party’s ideologies and preferences. The moment of choosing the party’s nominee, we have said, is ‘the crucial juncture at which the appeal to common principles may be translated into concerted action…the ability of the members of the Republican Party to select their own candidate…unquestionably implicates an associational freedom…the rights of a recognized political party unquestionably have a constitutional right to select their nominees for public office.”

The U.S. Supreme Court reiterated this in 2008 in New York State Board of Elections v Lopez Torres, when it said, “A political party has a First Amendment right to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” In 1840 the Whig Party chose a Democrat for Vice-President, and in 1864 the Republican Party chose a Democrat for Vice-President. It is believed that when Dwight Eisenhower was nominated for president in June 1952, he was a registered independent. In 2008 John McCain seriously considered asking U.S. Senator Joesph Lieberman, a registered Democrat, to be the Republican nominee for vice-president. It is not known if the South Dakota Libertarian Party will appeal.