How many options should your ballot have in South Dakota?

Two minor political parties took the state of South Dakota to court last week in a bid to unlock a political system that has long been dominated by the Republican and Democratic parties.

Both the Libertarian and Constitution parties say state laws make it hard to get candidates on the ballot. Their challenge comes at a time when more voters are opting out of the two-party system.

It might be easy to dismiss the arguments as a series of complaints from disgruntled party activists, but the plaintiffs say the issues are less about parties and more about choices.

The difference came up early in the trial, during Deputy Attorney General Rich Williams’ opening argument.

“The right to run for office is not a fundamental right,” Williams said, sparking this interjection from Judge Lawrence Piersol:

“Yes, but the right to vote for the candidate of your choice is.”

That right is why Brandon resident and plaintiff Joy Howe joined the Constitution Party in the first place.

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“The idea that two parties will represent the views of everybody in this country is patently false,” Howe said in court. “When we’re left with only two parties, and neither of them represents your views, where do we go?”

So what is a state’s responsibility to voters like Howe?

That question bubbled beneath the arguments in the federal courtroom, but it’s also animating the debate on bills in Pierre relating to who can sign petitions, what third parties must do to join the ballot and whether independents should have a vote at the primaries.

The answer is not simple, it differs from state to state, and lawmakers have divergent views on the relative importance of easing access.

But the issue is growing in importance.

Across the U.S., more people are opting for independence. Numbers have grown markedly since 2008. In Colorado, registered independents outnumber registered Democrats or Republicans.

In South Dakota, there are 121,046 voters who don't identify with a recognized party. That's a fifth of the state's voters, a block nearly twice as large in percentage terms as it was 20 years ago.

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Lawsuits like the one that played out in court last week have nudged states toward expanding options for those voters, but the change hasn’t happened quickly.

“Very slowly, over time, states have been moving toward easing ballot access rules,” said Wendy Underhill of the National Conference of State Legislatures. “It’s little by little, but it is moving that direction.”

South Dakota particularly restrictive

South Dakotans often have fewer options than voters in neighboring states.

The Green Party’s Jill Stein and independent Evan McMullin were not on the state’s 2016 Presidential ballot, for example. The Green Party has never been officially recognized as a political party in the state.

The number of signatures required to earn party status in the first place is higher in South Dakota than in just three other states: Oklahoma, Tennessee and Alabama. Until recently, parties risked losing that status every four years if they didn't run a candidate for governor.

One restriction is especially onerous, according to Richard Winger, a ballot access expert who testified for the plaintiffs in last week’s trial.

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Most third-party candidates are required to collect signatures from their own party members by March 29.

For legislative districts, candidates need five signatures. But candidates for Governor, U.S. House of Representatives or U.S. Senator need 250. That means Constitution Party candidates have to track down nearly half the party to make the cut.

Even the smaller number for local races can be rough for rural candidates. Aaron Aylward is chair of the South Dakota Libertarian Party, and he’s collecting signatures to run for state House in District 6.

It’s not impossible to find Libertarians in Tea and Harrisburg – there are about 40 - but there are some districts within the state where they’re much harder to track down. With the Constitution Party, there are districts where “it’s just not possible,” Aylward said.

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The reason primaries are favored in South Dakota, Williams told Judge Piersol, is that South Dakota’s early leaders felt strongly that parties should be built from the ground up – through primaries, not party conventions.

In practice, Winger said, primaries for minor parties are little more than ways to keep dissenting voices off the ballot.

“Almost every other state in the nation has determined that it’s not necessary to require newly-qualified parties to participate in the primary,” Winger said.

Independents also face difficulties

There are restrictions beyond party, too: South Dakota is one of only five of states that doesn't allow write-in candidates for any office, under any set of circumstances, Winger said.

The state’s early deadline is a problem for independent candidates. Ralph Nader sued South Dakota over its June signature deadline for Presidential candidates in 2000 and won, pushing back the deadline to file as an independent candidate to August.

Nader still missed the deadline for filing and the ballot, however.

Even after that ruling, lawmakers moved back the deadline for non-Presidential independent candidates again in 2012. Courts have consistently ruled that filing times needn't be tied to primary dates for independents, so Winger sees South Dakota's April deadline as ripe for a challenge.

“That’s another problem with election law that they really ought to fix,” Winger said.

George Hendrickson, who’s trying to earn a spot as a U.S. House candidate for the Libertarian Party, initially tried gathering signatures as an independent.

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The switch made sense, Hendrickson said, because his positions align closely with the Libertarian Party. But it also made sense to connect to an organization that could help.

Gathering signatures by himself was slow and largely unsuccessful.

“It's just not feasible for a citizen legislator who’s trying to raise a family and hold down a job that’s weather-dependent,” Hendrickson said.

Some lawmakers skeptical about opening up ballot

The lawsuit that played out in court last week has already opened ballot access somewhat.

Secretary of State Shantel Krebs successfully pitched changes favoring third parties in 2017 based in part on pre-trial rulings from Judge Karen Schreier.

Parties can now maintain party status and avoid another round of petition gathering by netting 2.5 percent of the vote for any statewide office. In the past, third parties needed 2.5 percent of the votes for Governor.

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She’s pushing for more this year. House Bill 1286 would essentially give the plaintiffs in the lawsuit everything they asked for, including the right to nominate all candidates at its annual convention.

“As this case has unfolded, you have shared with us that you feel it’s more burdensome,” Krebs said.

House Speaker Mark Mickelson isn't convinced that the changes are necessary. To the Sioux Falls Republican, the bill could mean creating a special political class that can follow simpler rules.

When Krebs offered cleanup language for the 2017 law change, Mickelson proposed an amendment that would have required a party to keep at least 1,000 registered members to qualify.

“I’m not trying to get the Libertarian Party or the Constitution Party, I just think that to be a party candidate, a certain number of people need to belong to your party,” Mickelson said.

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“Receiving the number of votes on election day – that should be the threshold,” Krebs said.

Mickelson said he's open to a different number for minimum party size, but he feels there ought to be one.

Mickelson also opposed HB 1286 in the House State Affairs Committee and was among four who voted no. The idea of letting parties pick candidates by convention but forcing independents to gather signatures didn't sit well.

"Either we've set the bar too high for the independents or we're reacting out of fear of some litigation," Mickelson said.

That particular point came up in court last week, when Judge Piersol remarked that a win for the plaintiffs might not be a win for all non-major party candidates.

“The independents, then, who are in a favored position now, would move to a disfavored position,” the judge said.

Hendrickson said he’d like to see more openness across the board. He sees himself as an option for the former party faithful who no longer see themselves in Democratic or Republican candidates.

"If there's thousands of you who that are of that opinion, but I can't get on the ballot, what does that do to your right to vote for a candidate of your choosing?" Hendrickson said.