EIGHTH CIRCUIT STRIKES DOWN SOUTH DAKOTA’S FEBRUARY PETITION DEADLINE FOR INITIATIVES

On August 11, the Eighth Circuit struck down South Dakota’s February petition deadline for initiatives.   Dakotans for Health v Johnson, 25-2940.  This was somewhat surprising, because at the oral argument in June, one of the judges had seemed skeptical of the case.  The vote was 2-1.  The decision is by Raymond Gruender, a Bush Jr. appointee, and is also signed by Jane Kelly, an Obama appointee.  James B. Loken, a Bush Sr. appointee, dissented.

The decision has implications for ballot access for minor parties and independent candidates.

The fight over South Dakota’s deadline for initiative petitions began in 2019, when a group called  SD Voice sued over the November (of the year before the election) deadline.  SD Voice complaiined that setting the deadline that early made it impossible for voters to decide whether to support an initiative, based on what the legislature might have done early in the election year.  SD Voice also complained that, in general, interest in political issues is not as great in odd years as it is in even years (election years).

SD Voice won that case in the Eighth Circuit in 2023.  60 F.4^th 1071.  The decision says that circulating a petition is free speech activity, and that the Constitution does not permit states to curtail that type of free speech activity for such a long period of time (i.e., all the months of even years) without a good reason.  “South Dakota has banned all participation in the petition process one year before the next election…The filing deadline clearly limits the number of voices that will convey a message on the ballot by pushing back the deadline to one year before a general election.”

The legislature then moved the deadline to May of even years.  But, in 2025, it moved it to February, and Dakotans for Health challenged the new deadline, and has now won.  The new decision depends on the 2023 decision and does not rehash the First Amendment theory.  It instead rejects the state’s arguments that it needs the new deadline for administrative reasons.

On August 24, the state asked for reconsideration before all the full-time judges of the Eighth Circuit, so the decision isn’t final yet.

Implications for Candidates

The decision will make it easier for minor party and independent candidates to win lawsuits against state laws that either have an early petition deadline or allow a very short window of time in which to petition.  This is especially true in Minnesota, which is in the Eighth Circuit.  Minnesota only allows two weeks for non-presidential independent candidates and the nominees of unqualified parties.  There is absolutely no election administration reason for Minnesota to tell such candidates that they can’t begin petitioning until two weeks before the deadline.  Most states have no limit on when such petitions can start to circulate.  The same theory that won the South Dakota case can be used to challenge Minnesota.

Minnesota policy for independent and minor party candidates is more severe than South Dakota’s rule for initiatives.  South Dakota allows initiatives to start petitioning as soon as one election is over.  Under the February deadline that was struck down in South Dakota, initiatives had fifteen months in which to petition.

The decision is not binding on states outside the Eighth Circuit, but it will be influential.  Other states that severely curtail the petitioning period for minor party or independent candidates are California (for independent presidential candidates), Illinois, New Mexico, New York, Rhode Island, and Texas.

The decision can also help to overturn early petition deadlines for minor parties and independent candidates.  The most outlandish such deadline is Arizona’s deadline for new parties, which is in November of the year before the election.  That deadline was created in 2019 and has never been challenged in court.

Dakotans for Health v Johnson is the first Eighth Circuit decision that even indirectly helps minor parties and independent candidates since 2020, when the Eighth Circuit struck down the Arkansas procedures for new parties to get on the ballot, in Arkansas Liberetarian Party v Thurston.  Unlike almost all other circuits, the Eighth Circuit has never struck down a law banning out-of-state circulators, and is the only circuit that ever upheld such a ban.

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NEW HAMPSHIRE WIN

On August 13, U.S. District Court Magistrate Andrea K. Johnstone ruled that Aaron Day, an independent candidate for U.S. Senate, should be on the ballot (assuming he has enough valid signatures, which he does)  even though he was not registered to vote at his current address when he filed his declaration of candidacy. Day v New Hampshire Secretary of State, 1:26cv-499.   On August 31, the U.S. District Court Judge approved the Magistrate’s opinion.

The decision says that no state can add to the qualifications to run for Congress, and even if Day were not registered at all, the state still couldn’t block him.

This is the fifth decision to arrive at that conclusion.  The others were from the the Fifth, Ninth, and Tenth Circuits, and a U.S. District Court in New Mexico.  These cases are rare, because normally anyone who wants to run for Congress will be a registered voter.

The importance of the decision is that it shows a growing tendency for courts to strike down barriers to ballot access for congressional candidates.  Other types of barriers that have been ruled illegitimate qualifications are:

1. The candidate had a felony conviction.
2. The candidate had broken campaign finance laws.
3. The candidate wouldn’t sign a loyalty oath.
4. The candidate was running for U.S. House and didn’t live in the district.
5. The candidate was not a registered member of the party whose nomination he or she was seeking.
6. The candidate was not a resident of the state when he filed his Declaration of Candidacy.

A list of these decisions is contained in the April 1, 2019 issue of B.A.N.  In addition, the U.S. Supreme Court ruled in 1995 that congressional term limit laws are unconstitutional qualifications.

Congressional ballot access laws are the most severe ballot access laws in the U.S.  They are far more severe than ballot access laws for president.  Eventually it may be possible to persuade courts that laws requiring an extremely high number of signatures to run for Congress are also impermissible.  Although states have the authority to have procedures in place for congressional candidates, a “procedure” is something that is necessary for election administration.

When a petition requirement has the effect of always blocking minor party and independent candidates (which is the case in Georgia for U.S. House), that requirement is clearly not necessary for election officials to administer the election.

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DEMOCRATS SUPPORT INDEPENDENT CANDIDATES IN SIX STATES

In 2026, the Democratic Party is formally or informally supporting independent candidates for important offices in six states:

Alaska(1):  the Democratic Party has endorsed Bill Hill, an independent candidate for U.S. House.  No Democrat is on the November ballot for U.S. House except an eccentric resident of South Dakota who is currently in federal prison.

Alaska(2):  the only Democrat who is running for Governor, Jonathan Kreiss-Tomkins, has a Lieutenant Governor running mate, Zac Johnson, who is a registered independent.

Arizona:  the Democratic Governor, Katie Hobbs, who us running for reelection, has chosen a registered independent as her Lieutenant Governor running mate.  He is John Giles, who formerly was a registered Republican and the mayor of Mesa.

Idaho:  the Democratic Party is informally supporting independent Todd Achilles for U.S. Senate.  No Democrat is running for that seat.

Montana:  the Democratic Party is informally supporting independent Seth Bodnar for U.S. Senate, even though a Democrat is also running.

Nebraska:  the Democratic Party is formally supporting independent Dan Osborn for U.S. Senate.  No Democrat is running.

South Dakota:  most leading Democratic activists are supporting independent Brian Bengs for U.S. Senate.  No Democrat is running.  The party itself is officially neutral.

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NEW MEXICO LOSS

On September 2, U.S. District Court Judge Margaret Strickland, a Biden appointee, refused to enjoin the New Mexico ballot access laws that prevented the Forward Party from placing its statewide nominees on the 2026 ballot. New Mexico Forward Party v Toulouse Oliver, 1:26cv-2286.

New Mexico is the only state that has a “double petitioning requirement”, which means that it requires one petition to qualify the party itself, and then (after the new party nominates candidates by convention) requires each of the nominees to submit his or her own separate petition. The nominee petition (for parties with a registration under 1% of the statewide total) is 2% of the last gubernatorial vote, or 14,246 signatures. The Forward Party successfully petitioned as a minor party, but was unable to then get 14,246 valid signatures for each of its statewide nominees.

A similar double petition system had been struck down in 2003 by Maryland’s highest state court, so that left New Mexico as the only state with such a requirement. The judge said that the Maryland precedent is not on point because, she wrote, the Maryland party petition required more signatures than the nominee petitions, so the nominee petitions didn’t add anything. She is mistaken. The Maryland party petition at the time of the 2003 ruling was 10,000 signatures, but the nominee petitions were 1% of the number of registered voters, or approximately 27,000 signatures each for statewide office.

The judge said that the current New Mexico system is similar to the Pennsylvania system, but there is no Pennsylvania requirement for a petition to qualify the party itself; Pennsylvania only has candidate petitions. There is no double petitioning requirement. Furthermore, in Pennsylvania, the candidate petitions can all be on a single petition, whereas in New Mexico, every candidate needs a separate petition. Even the gubernatorial candidate and the lieutenant governor candidates in New Mexico need separate petitions, even though they run as a joint ticket team.

The judge said the New Mexico system had been upheld in 2006, but, in 2006, the nominee petitions were 1% of the last gubernatorial vote, and now they are at 2%. The 2023 session of the legislature doubled the requirement for minor parties with less than 1% of the registration.

The judge says the requirements are necessary to prevent “ballot overcrowding”, despite the evidence in the past that New Mexico, for over twenty-five years, has had an average of fewer than two candidates on the general election ballot for all federal and state offices.

The judge ignored the U.S. Supreme Court teaching in Storer v Brown (1974) that courts should decide whether a ballot access barrier is too difficult by analyzing how many candidates successfully used it. The judge made much of the fact that three Forward Party nominees for local partisan office did get on the ballot this year, but they only needed a few hundred signatures because their districts are so small.

The judge assumed that because the Forward Party only has 227 registered members, therefore its nominees lack popular support. But in reality, throughout history, a minor party’s registration has virtually no correlation with the support of its nominees. Vermont Progressive Party nominees frequently win general elections to the legislature, and once even to statewide office, yet the party always has a tiny number of voters in its own primary (Vermont doesn’t have registration by party).

Perhaps the decision’s greatest weakness is that it says nothing about the fact that New Mexico doesn’t require nominee petitions for president, and yet New Mexico doesn’t have a crowded presidential ballot. One wonders, if the New Mexico presidential ballot is uncrowded despite the absence of nominee petitions, why is it needed for other office candidates?

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IOWA IS NO LONGER A MODEL FOR BALLOT ACCESS

From 1892, when Iowa passed its first ballot access law, to 2023, Iowa was one of the most tolerant states for minor party and independent candidate ballot access.  The original law required a petition of 1,000 signatures, due 20 days before the election.  In 1925, the law was made even easier:  minor parties could get on with no petition, just by holding a nominating convention with no specified minimum number of attendees.

No presidential candidate of any importance was ever kept off the Iowa ballot, all the way through 2023.

Iowa permitted a party named the Republicsons to get on the ballot in 1954.  Most states would not have permitted that, because of the similarity to “Republican Party.”

In 1964, when the Democratic Party missed the deadline to certify Lyndon Johnson for the ballot, the Secretary of State set the deadline law aside and permitted Johnson to be on the ballot anyway.  A voter sued the Secretary of State, but the state courts upheld the Secretary of State’s decision.

Now all that has changed.  This year, the state kept the Libertarian Party gubernatorial candidate off the ballot because his Lieutenant Governor candidate did not submit a declaration of candidacy.  She tried to submit it, but the election official told her it was not needed.

The party sued, and the state court judge said it was just as likely that this account was true as that it wasn’t, but he still wouldn’t put the ticket on the ballot.

Then, the Libertarian Party tried to fill the vacancy, but the state rejected that, and another state court judge said that the party’s submission was too late.  The law is very ambiguous.

The legislature has also increased the petition hurdles in the past few years.  It added a county distribution requirement to the statewide petition, which is almost certainly unconstitutional, but that change kept the Green Party off the 2024 ballot.  The legislature also passed a law saying that even if a party meets the 2% vote test for qualified status, it isn’t qualified.  Instead, the party must meet the vote test three times in a row before it can be qualified.

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NEW JERSEY LOSS

On August 31, U.S. District Court Judge Zahid Quraishi, a Biden appointee, refused to order New Jersey to put Lana Leguia on the ballot as the Libertarian nominee for U.S. House, 7^th district.  Everyone agreed that she had enough valid signatures, but some of them had been collected by out-of-state residents.

New Jersey law bans out-of-state circulators, but the parallel law on primary petitions had been declared unconstitutional in 2021.  The state had not been enforcing the ban for general election petitions, either.

The judge said Leguia had been treated unjustly, but he said because Leguia had already gone to state court and lost, it was impossible for him to reach the constitutional issue.

It will be possible for a new lawsuit to be filed in federal court in the future.  None of the courts in the 2026 Leguia lawsuit reached the constitutional issue.  The federal case was Leguia v Caldwell, 3:26cv-10263.

Other states with pending lawsuits over out-of-state petitioner bans are Florida and Wisconsin.

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U.S. HOUSE OF REPRESENTATIVES CANDIDATES ON 2026 BALLOT

	# seats	Dem.	Rep.	Lib’t.	Green	Consti.	Forward	oth(1)	oth(2)	indp.
Ala	7	7	7	0	0	0	0	0	0	1
Alas	1	1	1	1	0	0	0	0	0	1
Ariz	9	9	8	3	2	0	0	2	0	0
Ark	4	4	4	2	0	0	0	0	0	0
Cal	52	51	43	0	0	0	0	0	0	1
Colo	8	8	8	4	1	2	0	3	0	4
Ct	5	5	5	0	1	0	0	2	0	0
Del	1	1	1	0	0	0	0	1	0	0
D.C.	1	1	1	0	1	0	0	0	0	1
Fla	28	28	27	5	0	0	1	0	0	13
Ga	14	14	14	0	0	0	0	0	0	0
Hi	2	2	2	0	1	0	0	0	0	2
Id	2	2	2	1	0	2	0	0	0	2
Ill	17	17	17	0	0	0	0	1	0	1
Ind	9	9	9	3	0	0	0	0	0	0
Iowa	4	4	4	1	0	0	0	0	0	2
Kan	4	4	4	4	0	0	0	0	0	0
Ky	6	6	6	1	1	0	0	0	0	4
La	6	6	6	2	0	0	0	0	0	3
Maine	2	2	2	0	0	0	0	0	0	0
Md	8	8	8	0	3	0	0	0	0	3
Mass	9	9	5	0	0	0	0	0	0	2
Mich	13	13	13	7	13	5	0	8	1	2
Minn	8	8	8	0	0	0	0	0	0	1
Miss	4	4	4	1	0	0	0	0	0	2
Mo	8	8	8	8	0	0	0	1	0	0
Mont	2	2	2	2	0	0	0	0	0	1
Neb	3	3	3	2	0	0	0	1	0	0
Nev	4	4	4	0	0	2	0	0	0	8
N H	2	2	2	0	0	0	0	0	0	3
N Jer	12	12	12	0	2	0	0	1	0	9
N Mex	3	3	3	0	0	0	0	0	0	0
N York	26	26	26	1	0	0	0	1	1	6
No C	14	14	14	9	2	0	0	0	0	0
No D	1	1	1	0	0	0	0	0	0	2
Ohio	15	15	15	4	0	0	0	0	0	5
Okla	5	5	5	0	0	0	0	0	0	4
Ore	6	6	6	1	2	0	2	0	0	0
Penn	17	17	16	0	2	0	0	0	0	1
R I	2	2	2	0	0	0	0	0	0	1
So C	7	7	7	3	0	0	1	1	1	0
So D	1	1	1	0	0	0	0	0	0	0
Tenn	9	9	9	0	0	0	0	0	0	30
Tex Te	38	38	38	3	5	0	0	0	0	1
Utah	4	4	4	4	0	1	0	1	0	4
Vt	1	1	1	0	0	0	0	0	0	4
Va	11	11	10	2	0	0	0	0	0	11
Wash	10	10	9	0	0	0	0	0	0	0
W Va	2	2	2	0	0	1	0	0	0	0
Wis	8	8	7	0	1	0	0	0	0	6
Wyo	1	1	1	1	0	1	0	0	0	0
TOTAL	436	435	417	75	37	14	2	23	2	141

Parties in the “other(1)” column are:  Arizona, No Labels; Colorado, United; Connecticut, Independent Party; Delaware, Independent Party; Illinois, Working Class; Michigan, Working Class; Nebraska, Legal Marijuana Now; New Jersey, Socialist Workers; New York, Conservative; South Carolina, Forward; Utah, Independent American.

Parties in the “other(2)” column are:  Michigan, Natural Law; New York, Socialism & Liberation; South Carolina, Workers.

The Green Party entry for Kentucky is for the Kentucky Party, which for two years has been functioning as the Green Party affiliate (in 2024, it nominated Jill Stein for president).

Parties that have more nominees for U.S. House in 2026 than they did in 2024, and which had at least ten candidates, are the Democratic, Libertarian, and Green Parties.  Those parties had this number of candidates in 2024:  Democratic 416, Libertarian 71, and Green 34.

The number of independent candidates this year is more than double the number in 2024, when there were 58.

For candidates who were nominated by two parties, they are only counted for the party of which the candidates is a member.  No one is counted twice.

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2026 PETITIONING FOR STATEWIDE OFFICES

	Party sigs	Indp sigs	LIB’T	GREEN	CONSTIT	FORWRD	Pty due	Indp due
State	Party sigs	Indp sigs	Libertarian	Green	Constitu.	Forward	Party due	Indp. Due
Alabama	42,459	42,459	too late	too late	too late	too late	May 19	May 19
Alaska	(reg) 5,000	#Pay fee	already on	too late	too late	too late	May 4	June 1
Arizona	34,127	#44,539	already on	already on	too late	too late	Nv 14, 25	May 6
Arkansas	10,000	10,000	already on	*too late	too late	too late	April 28	May 1
Calif.	(reg) 76,413	65	already on	already on	too late	too late	Dec 31 25	March 6
Colorado	10,000	#8,000	already on	already on	already on	already on	Jan 9	July 9
Conn.	no procedure	#7,500	*too late	*too late	*too late	*too late	– –	Aug 10
Del.	(reg) 780	7,800	already on	*too late	*too late	*too late	Aug 25	July 15
D.C.	no procedure	#3,000	*too late	*too late	*too late	*too late	– –	Aug 5
Florida	be organized	0	already on	already on	already on	already on	Apr 24	Apr 24
Georgia	72,680	#70,083	*too late	*too late	*too late	*too late	July 14	July 14
Hawaii	861	25	already on	already on	too late	too late	Feb 20	June 2
Idaho	18,349	1,000	already on	*too late	*too late	*too late	Aug 30	March 21
Illinois	no procedure	#25,000	too late	too late	too late	too late	– –	May 25
Indiana	no procedure	#36,944	already on	too late	too late	too late	– –	June 30
Iowa	no procedure	#3,500	*already on	too late	too late	too late	– –	June 2
Kansas	20,180	5,000	already on	*too late	*too late	*too late	June 1	Aug 3
Kentucky	no procedure	#5,000	*too late	*too late	*too late	*too late	– –	Aug 11
Louisiana	1,000  + 5,000	5,000	too late	too late	too late	too late	Feb 13	Feb 13
Maine	(reg) 5,000	#4,000	already on	already on	too late	too late	Jan 2	June 1
Maryld.	10,000	10,000	*too late	already on	*too late	*too late	July 1	Aug 3
Mass.	(reg) 45, 500	#10,000	*already on	too late	too late	too late	Feb. 1	July 28
Michigan	44,618	12,000	already on	already on	already on	*too late	July 16	July 16
Minn.	163,621	#2,000	already on	already on	too late	already on	May 2	June 2
Miss.	be organized	1,000	already on	already on	already on	too late	Feb 2	Feb. 2
Missouri	10,000	10,000	already on	*too late	*too late	*too late	July 27	July 27
Montana	5,000	#12,788	already on	too late	too late	too late	March 2	May 26
Nebraska	6,726	4,000	already on	*too late	*too late	*too late	*July 15	Sept 1
Nevada	14,271	250	already on	too late	already on	too late	May 12	May 12
N.Hamp	24,375	#3,000	*already on	*too late	*already on	*too late	Aug 4	Aug 4
N Jersey	no procedure	#2,000	too late	too late	too late	too late	– –	June 2
N Mex	3,560 +14,246	14,246	*too late	too late	too late	in court	June 25	June 25
N York	no procedure	#45,000	too late	too late	too late	too late	– –	May 26
No Caro	*14,310	83,874	already on	already on	too late	too late	May 17	March 3
No Dak	7,000	1,000	*too  late	*too late	*too late	*too late	April 6	Aug 31
Ohio	57,678	5,000	already on	too late	too late	too late	July 1	May 4
Okla	34,599	0	already on	too late	too late	too late	March 2	April 10
Oregon	29,294	22,445	already on	already on	*too late	*too late	Aug 11	Aug 11
Penn.	no procedure	#5,000	*already on	*too late	*too late	*too late	– –	Aug 3
R.I.	*25,670	#1,000	*too late	*too late	*too late	*too late	Aug 3	July 10
So.Car.	10,000	10,000	already on	already on	already on	already on	May 3	July 15
So.Dak.	3,502	3,502	already on	too late	too late	too late	July 1	April 28
Tenn	43,498	25	*too late	*too late	*too late	*too late	Aug 5	March 10
Texas	81,030	81,030	already on	already on	too late	too late	May 26	May 11
Utah	2,000	#1,000	already on	already on	already on	already on	Nv  30 ‘25	June 15
Vermont	be organized	#500	already on	*too late	*too late	*too late	Dec 31 ‘25	Aug 6
Virginia	no procedure	#10,000	*too late	too late	too late	too late	—	June 16
Wash.	no procedure	#0	too late	too late	too late	too late	– –	May 8
W.Va.	no procedure	#7,478	already on	already on	already on	*too late	– –	Aug 3
Wisc.	10,000	#2,000	already on	already on	already on	too late	April 1	June 1
Wyoming	5,201	5,201	already on	*too late	already on	*too late	June 1	Aug 24
#ON			*35	*17	11	5
#ON			*35	*17	11	5

* means change since August 1, 2026 B,A,N.

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FLORIDA DEMOCRATS NOMINATE DAVID JOLLY, FORMER MINOR PARTY ACTIVIST, FOR GOVERNOR

On August 18, Florida held primaries.  The winner of the Democratic gubernatorial primary is David Jolly.  In the past, he was a leader of two minor parties.  In 2021, he was national chair of the SAM Party (Serve America Party).  And, in 2022, he became active in the Forward Party.  He registered as a Democrat in April 2025.  He had also been a Republican member of Congress 2014-2017.

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KSHAMA SAWANT FALLS VICTIM TO WASHINGTON TOP-TWO PRIMARY

Kshama Sawant, a former Seattle city councilmember and a declared socialist, ran for U.S. House in Washington’s Tenth District.  But, she did not place among the top two finishers in the August 4 primary.  Her ballot label was “independent.”  The candidates who qualified include Adam Smith (the Democratic incumbent) and a Republican.

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TWO NEW PARTIES QUALIFY IN NEBRASKA

Last month, two new parties qualified in Nebraska, the America First Party and the Working People Party.  Neither exists in any other state.

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BRITISH PRIME MINISTER ENDORSES PROPORTIONAL REPRESENTATION

Andy Burnham, Prime Minister of the United Kingdom, said last month that he is a strong supporter of proportional representation.

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MOORE COUNTY, TENNESSEE, RE-ELECTS ITS INDEPENDENT SHERIFF

On August 6, Tennessee held elections for partisan county offices.  The voters of Moore County reelected Sheriff Justin Tyler, an independent candidate.  He defeated his only opponent, the Republican nominee, by a margin of 4-1.

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OREGON DISQUALIFIES TWO PARTIES

Last month, the Oregon Secretary of State disqualified the Constitution Party and the We the People Party.  Neither one of them had enough registered members to meet the requirement.