On February 26, the Attorney General of South Dakota wrote a letter to attorneys for the Libertarian and Constitution Parties. Those two parties are currently suing South Dakota over the March 29 deadline to submit a petition for party status. The letter says the parties, or any parties, don’t need a petition if they just want to be on the general election ballot for President and for statewide state executive positions other than Governor (i.e., Lieutenant Governor, Secretary of State, Attorney General, Public Utilities Commissioner, etc.)

Until this letter arrived, virtually everyone had believed that a group could not become a qualified party in South Dakota unless it submitted a petition of 2.5% of the last gubernatorial vote, which, this year, is 6,936 signatures.

In South Dakota, parties nominate by convention for some offices, and with primaries for other office. The letter says that parties can be on the general election ballot, with no petition, for all the offices in which state law says parties use conventions. That includes presidential elector, of course. The 6,936 signatures are only needed if the new party wants to nominate for Governor, U.S. Senate, U.S. House, or state legislature.

The Gazette-Democrat has this story about the decision of U.S. District Court Judge James Moody not to enjoin the Arkansas law that says convention parties must choose all their nominees at least a year before the general election.

What the story does not say, and what the judge does not say, is that in 1996, another U.S. District Court Judge in Arkansas struck down the law saying a new party must submit its petition by January of the election year. If it is unconstitutional to require a new party to complete its petition for party status by January of the election year, then it should be obvious that it can’t be constitutional to require a new party to choose all its nominees before November of the odd year before the election.

Judge Moody’s claim that if the Libertarian Party, and other newly-qualifying parties, were allowed to nominate in the election year, that would cause “voter confusion” is unsupported by any logic or evidence. And the judge’s statement that it is constitutional for a state to require that all candidates (whether running in a primary, or being nominated in a convention, or getting on the general election ballot by petition) file simultaneously has been rejected by the U.S. Supreme Court four times: Anderson v Celebrezze, Mandel v Bradley, Lendall v Jernigan, and Salera v Tucker. As the U.S. Supreme Court said in Jenness v Fortson, “Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.”

The First Circuit includes the states of Maine, New Hampshire, Massachusetts, and Rhode Island (as well as Puerto Rico). The First Circuit will soon decide whether New Hampshire violated the Constitution when it passed a law in 2014, making it illegal for the petition to create a new party to circulate in an odd year. The case is Libertarian Party of New Hampshire v Gardner.

On February 25, the ballot-qualified parties (other than the Democratic and Republican Parties) of the states in the First Circuit jointly filed an amicus curiae brief in support of the New Hampshire Libertarian Party. The parties on the amicus brief are the Moderate Party of Rhode Island, the United Independent Party of Massachusetts, the Green Party of Maine, and the Green Party of Massachusetts. Also the Massachusetts Libertarian Party, which is not now ballot-qualified, is on the amicus.