The Constitution Party is ballot-qualified in South Dakota, but it cannot remain on the ballot for the next four years unless it polls 2.5% for Governor this year. State law says a gubernatorial candidate needs 250 signatures of party members, regardless of how many or how few registered members it has, to get on the party’s primary ballot. On March 28, the Secretary of State determined that the party’s gubernatorial nominee, Curtis Strong, only submitted 238 valid signatures of party members and won’t be on the party’s primary ballot. In South Dakota, all ballot-qualified parties nominate by primary for Governor and Congress, although party conventions nominate candidates for lesser statewide offices.

The candidate submitted 262 signatures. He has copies of all the signatures and has checked the registration of each of the signers, and believes all of his signatures are valid. The party only has 441 registered members in South Dakota.

It is probably unconstitutional for South Dakota to require so many signatures when there are only 441 eligible signers. In 1974, the U.S. Supreme Court ruled that courts should examine the number of signatures divided by the number of eligible signers, and if the resulting percentage is much above 5%, the law is unconstitutional. Storer v Brown, 415 U.S. 724. In 2010, the South Dakota Constitution Party, which was then the only ballot-qualified party besides the Democratic and Republican Parties, also failed to get its gubernatorial candidate on its own primary ballot. It sued, but the U.S. District Court ruled that none of the plaintiffs had standing. This is because the party’s gubernatorial candidate in 2010 refused to join the lawsuit as a plaintiff. However, the U.S. District Court when on to say that even if the plaintiffs did have standing, the 250-signature requirement is constitutional. The U.S. District Court based this on the fact that 250 seems like a very small number. The U.S. District Court also said that no case similar to this had ever resulted in striking down the number of signatures to get on the primary ballot. That was incorrect; in 1985 the Consumer Party of Pennsylvania had won a very similar case, and the court ruled that requiring a Consumer Party candidate to obtain 2,000 signatures of party members, when the party only had 7,000 members, was unconstitutional.

The U.S. District Court Judge also cited the U.S. Supreme Court decision Lopez Torres v New York State Board of Elections to support his conclusion, but that was erroneous, because in that case, which concerned primary ballot access barriers for a candidate to get on the Democratic primary, the Democratic Party wanted the severe restriction in place. The U.S. Supreme Court decision was based on the party’s desire that the ballot access barriers be maintained.

The Constitution Party will do its best to litigate, because if its gubernatorial candidate is kept off the party’s primary ballot, it will lose its qualified status. This problem is very similar to the problem the Ohio Libertarian Party is fighting. As in Ohio, the Constitution Party’s gubernatorial candidate is unopposed, so all he needs is one vote in the party’s primary. South Dakota does not permit write-in voting.