David Montgomery

dmontgome@argusleader.com

The South Dakota Libertarian Party is suing to try to put its choice for Public Utilities Commission on the ballot.

The lawsuit, filed Monday in federal court, asks a judge to put Ryan Gaddy on the ballot as a Libertarian.

Secretary of State Jason Gant disqualified Gaddy for violating South Dakota’s state law requiring candidates to be members of the party nominating them.

Gaddy filled out his change of registration form the day he was nominated, and it wasn’t filed with the county until several days later.

Party chair Emmett Reistroffer says the law requiring candidates to be members of their nominating party is unconstitutional.

“We must look to the Supreme Court to implement a fair and equal approach to ballot access,” Reistroffer said in a statement.

A 1986 Supreme Court ruling, Tashjian v. Republican Party of Connecticut, suggested laws requiring party membership would violate the Constitution.

“Were the State ... to provide that only Party members might be selected as the Party’s chosen nominees for public office, such a prohibition of potential association with nonmembers would clearly infringe upon the rights of the Party’s members under the First Amendment to organize with like-minded citizens in support of common political goals,” Justice Thurgood Marshall wrote for a 5-4 majority.

Several federal courts have cited that ruling in overturning laws similar to South Dakota’s, including a recent New Mexico decision.

The party’s lawsuit says South Dakota doesn’t have a compelling interest in requiring party membership but that it does harm both Gaddy’s and the party’s rights of free speech and free association.

This is the second lawsuit this month challenging Gant’s candidate approval decisions. He previously lost a lawsuit from independent gubernatorial candidate Mike Myers asking Gant to let him change his running mate.

The Libertarian Party’s lawsuit was assigned to the same federal judge who ruled in favor of Myers: Lawrence Piersol. Edward Welch, the lawyer for Myers’ winning effort, is representing the Libertarian Party.

Last week, Gant said he wasn’t allowed to consider whether state laws were constitutional when deciding whether to enforce them.

“My job is to follow state law. If there’s constitutional requirements, I’m leaving that up to the attorneys and the judges,” Gant said.

Gant reviewed the nominations of two of the six men nominated by the South Dakota Libertarian Party at its Aug. 9 convention: Gaddy and attorney general nominee Chad Haber.

Both had been registered Republicans until shortly before the nomination.

Gant certified Haber because he had filled out his voter registration the day before at an official state office, but he rejected Gaddy’s candidacy because Gaddy filled his form out at the Sioux Falls library on the day of the convention.

Action on this lawsuit will have to proceed quickly, with Gant planning to start the ballot-printing process in early September.

If Piersol rules in favor of Gaddy, he would be the fourth candidate on the PUC ballot.

Republican incumbent Gary Hanson, Democrat David Allen and Constitution Party candidate Wayne Schmidt already are on the ballot.

ONLINE: Read the South Dakota Libertarian Party’s lawsuit.