Home > 2015 SD Legislative Session > Senate State Affairs committee advances SB 69 knowing it has constitutional issues

Senate State Affairs committee advances SB 69 knowing it has constitutional issues

January 29, 2015

Sometimes I just can’t help but shake my head at what goes on in Pierre. The Senate State Affairs handling of SB 69 is one of those times. SB 69 is one of a few bills being proposed this year to reform the election petition process. Overall I have been supportive of these bills because they would hopefully prevent many of the problems that occurred in the 2014 election. As of the Senate State Affairs committee meeting yesterday it has become impossible to support at least one of these bills anymore. SB 69 is an even bigger problem waiting to happen.

Here is the links for SB 69 and its stated purpose:

SB 69 SoDakLiberty Posts – Revise certain provisions regarding elections and election petitions.

About a week ago I wrote about a potential ballot access issues with SB69. After that I mostly stayed back and watched the proceeding. The ACLU has been working on the issue and I didn’t foresee the bill leaving the Senate State Affairs committee with such a potentially large issue remaining unfixed. I apparently gave the Senate State Affairs committee too much credit.

At question is the deadline for new parties to make ballot access in South Dakota. SB 69 would move the deadline for newly-qualifying parties from the last Tuesday in March to the last Tuesday in February. Without scrutiny this wouldn’t seem like a big deal. But for citizens trying to get a party and candidate on the ballot in time for an election this is a huge change. It is also a change the State of South Dakota admitted could not be done.

Here is some background:

Back in 1984 the State of South Dakota had its deadline for newly-qualifying parties set at February. This caused the Libertarian Party of SD to sue then Secretary of State Alice Kundert on the grounds that this placed unconstitutional restricts upon newly-qualifying  parties. The court never actually had to decide upon this portion of the lawsuit because Secretary Kundert admitted the February deadline was unconstitutional and the legislature fixed this by moving it back up to April the next session.

On January of 1984 the Federal Court gave the following order to Secretary Kundert to allow newly-qualifying petitions to be valid submitted at their old deadline, this allowed any parties to utilize this deadline until the legislature could fix the provision.

US District Court Order to SOS Kundert in 1984

US District Court Order to SOS Kundert in 1984

From this order and Secretary Kundert’s admission it is quite clear that South Dakota is aware of the fact a February deadline would be found unconstitutional.

Since that time the deadline had been moved from April down to March. There wasn’t any lawsuit coming out of that move. But with it now being moved down to Febuary again it is only a matter of time before the State of SD goes to court over ballot access.

True, it is quite possible that none of the current legislators or Secretary of State remember the legal issues Kundert dealt with in 1984 over the petition deadlines set in 1984. But the Senate State Affairs committee was made aware of this during hearing for SB 69. It is almost unfathomable that the committee would pass a bill onto the Senate floor knowing it will likely be challenged in the next election cycle; and that the State of South Dakota has already admitted February was too early.

There is still time to fix this bill. It has to be passed on the Senate floor, a House committee, and then the House floor. Hopefully somewhere in that process the legislature will try to fix this bill.

Like I said at the beginning of this post. I really do support what this bill was originally trying to do. In some ways it is trying to simplify petition deadlines, while also allowing sufficient time for challenges to petitions. I support both of those endeavors. But to pass a bill into law that is known to have constitutional issues just sounds like the legislature being willing to waste judicial resources during the next election cycle. That just doesn’t seem like the best path forward.

PS. There are other major and minor issues with SB 69, especially with some amendments that came out of the Senate State Affairs committee. But I wanted to keep this post focused purely upon a known constitutional issue with the bill.

  1. Merlyn Schutterle
    January 29, 2015 at 11:37 am

    I remember meeting with Alice at at one of her campaign trips. I loved her. She was the only one who had the courage to take on Janklow. He hated her. She was her own person and wouldn’t cow down to Jankow. Neither did I.

    Salute!

  1. January 30, 2015 at 10:23 am
  2. February 3, 2015 at 1:17 am
  3. February 4, 2015 at 10:43 am
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