On August 4, U.S. District Court Judge Roberto A. Lange upheld several South Dakota ballot access laws, in a one-sided opinion that did not even mention the precedents most on-point. Constitution Party of South Dakota v Nelson, cv10-3011. Here is the 27 page order.
The party’s chief complaint is that the state requires a member of the party who is running for statewide office to obtain 250 signatures of party members, in order to get on the party’s primary ballot. The Constitution Party only has 315 registered voters in the state. Three other cases on the subject of how to handle this issue are not even mentioned in the decision. Furthermore, the U.S. Supreme Court said in Storer v Brown that courts are supposed to evaluate ballot access requirements by calculating the number of required signatures as a percentage of the number of eligible signers. The Storer decision does not say that the candidate is supposed to take efforts to increase the number of eligible signers. For example, in the Storer case, independent candidates were not permitted to obtain the signatures of people who voted in a partisan primary. The Supreme Court did not say the candidate is supposed to persuade voters not to vote in the primary. But Judge Lange in his opinion says the party should increase its registration, even though the party already showed it has voter support by submitting 8,389 valid signatures to qualify as a party this year.
The other three cases on the subject of how to handle primary petitions when a party has a very small number of registered voters are from Arizona, Pennsylvania, and Maine. The South Dakota opinion does not even mention them. The Pennsylvania and Arizona cases resulted in the laws being struck down. The Maine decision did not strike down the number of signatures, but said a party in Maine is free to give up its qualified status and its primary, and simply place its nominees on the general election ballot, with the party label, by using the independent petition.
The South Dakota decision depends on New York State Board of Elections v Lopez Torres, a case from the U.S. Supreme Court which upheld a law requiring candidates for delegate to a party nominating convention to get approximately 2% or 3% of the party members to sign a petition. But, the political parties in that case supported the difficult petition requirements. The South Dakota decision does not mention this crucial distinction.
And, in a very basic error, the Court said the Constitution Party and all the other South Dakota plaintiffs in the case don’t have standing. It is basic practice that when a court rules the plaintiffs don’t have standing, the court should not adjudicate the constitutional issues in the case. If the plaintiffs don’t have standing, the court should simply note that and make no determination about the constitutional issues in the case.
On top of everything else, the judge upheld the March petition deadline for a new party to submit its petition, and did not mention any precedents that strike down such deadlines, including two 8th circuit precedents. And he upheld the ban on out-of-state circulators.
