Judge: SD violates U.S. Constitution by restricting third political parties

South Dakota’s rules for third political parties are unconstitutional, a federal judge has ruled.

The decision is a victory for the Libertarian and Constitution parties of South Dakota, along with the American Civil Liberties Union, which represented them in their lawsuit against South Dakota Secretary of State Shantel Krebs.

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The ruling affirms the argument that the state’s two-party legislature has made access to the ballot for dissenting voices uniquely difficult, and that they violated the First and Fourteenth Amendments of the U.S. Constitution in doing so.

Judge Lawrence Piersol’s 16-page decision says the state requires too many signatures for ballot access, and that the March 27 petition deadline for new parties and primary candidates is too early.

The state failed to offer a defensible reason for the restrictions during a two-day trial earlier this month, the judge concluded.

“Further, the ballot access law at issue disadvantages one group over another so as to result in an unequal treatment which is not justified by a compelling interest,” Piersol wrote.

The burdens on third parties effectively push candidates off the ballot, the judge concluded.

He cited testimony from two former third-party activists who said that running outside the two-party system left them exhausted, demoralized and unwilling to participate in the future.

More: Krebs: Law change could ease burden for third political parties

“The severe burden these ballot access laws place on third parties serves to restrict the candidates from these third parties that can put themselves on the ballot, further restricting the voters' ability to vote for the candidate of their choice—a candidate who aligns with their principles,” the judge wrote.

The state now must either appeal the ruling or change its ballot access laws to comply.

On Thursday, Krebs said her office carries out the laws as passed by the legislature. Though election laws have been amended, she said, some have been on the books since 1929.

"Every Secretary of State since then has followed them in regards to elections," Krebs said. "It is now up to the Legislature to act on Judge Piersol’s ruling and set or change public policy."

Krebs testified in court that her office had proposed legislation in 2017 and 2018 to ease ballot access for third parties.

The 2017 bill allowed parties to maintain official status if one of its candidates receives 2.5 percent of the vote for any statewide office. Previously, parties needed to earn 2.5 percent support for a gubernatorial candidate to avoid another round of petitioning.

The state House of Representatives has yet to take action on House Bill 1286, a Krebs-backed initiative that would grant the third parties the remainder of the access they sued to obtain in 2015.

The bill is on the House of Representatives’ calendar again Thursday.