South Dakota Governor Dennis Daugaard signed a bill dramatically changing the laws governing ballot access for Independent candidates just months after an Independent took 17% of the vote in a statewide election.
The bill, Senate Bill 69, an act to revise certain provisions regarding elections and election petitions, specifically addresses how many signatures an Independent candidate must collect to get on the ballot, and who is allowed to sign the candidate's petition.
The bill prevents any registered Democrat or Republican from signing an Independent nominating petition.
In 2014, two Independent candidates combined took 20% of the vote in South Dakota’s Senate election.
The bill places Independent candidates under the same restrictions for circulating their nominating petitions as Democratic and Republican candidates. Supporters argue that this is an effort to establish consistency and fairness among party affiliations.
However, opponents argue that this is retribution for Independents’ strong showing in 2014 and the dissatisfied party voters who supported them.
In 2014, Independent candidates in South Dakota garnered significant support from party voters in the state’s Senate election.
Independent Larry Pressler appealed to frustrated party voters by running on a moderate, anti-partisan platform. At one point in October, Pressler was polling at 32%, well above the 20% of South Dakota voters registered as Independent or without a party affiliation.
Similarly, Independent Gordon Howie appealed to conservative Republicans by running on a platform to the right of Republican Mike Rounds.
Testifying against the bill in front of the South Dakota House State Affairs Committee on March 6, Jay Davis of Rapid City argued, "people run as Independents and make that decision if they feel the two major parties have failed to provide an adequate choice.”Prior to the passage of this bill, party voters could not sign the nominating petitions for candidates in the opposing parties. Party voters were not prevented from signing the nominating petitions of Independent candidates. Those voters who felt that “the two major parties failed to provide an adequate choice,” could help to promote that choice by signing the nominating petitions of Independent candidates.
Although dissatisfied party voters will maintain the right to vote for Independent candidates in the general election, under the provisions of SB 69 they will no longer have the right to sign those candidates’ nominating petitions.
This aspect of the bill has raised a great deal of ire from its opponents, “For voters, by virtue of your membership in a party, either active or lapsed, your electoral rights have been truncated,” said Charlie Wheelan, a senior lecturer and policy fellow at the Rockefeller Center at Dartmouth College and the bestselling author of Naked Economics and The Centrist Manifesto.
The bill also changes the number of signatures required for Independents to get on the ballot from 1% of the number of the votes cast in the previous gubernatorial election to 1% of the number of voters registered as Independent, without a party affiliation, or with an unrecognized third party.
"Now 42% of Americans view themselves as Independent. I think it actually behooves us to start recognizing them as such and saying, 'Look if your going to go down that route then you've got your own mechanisms to follow.'"
Supporters of the bill argue that these changes were done to establish consistency between Democrats, Republicans, and Independents.“As a Republican we collect 1% of the amount of votes that have voted in the previous election and as a Democrat you would have the same issue but with Independents they were able to draw from a wider pool and we felt that it was better to have Independents draw from the pool of Independents just like Democrats and Republicans had to do. So the amendment that we made in the committee was to have consistent language for Democrats, Independents, and Republicans, where all three would be required to draw 1% from the pool of eligible voters,” said Senator Lederman, in support of the bill.
“Now 42% of Americans view themselves as Independent. I think it actually behooves us to start recognizing them as such and saying, ‘Look if your going to go down that route then you’ve got your own mechanisms to follow’ and I just think if that’s what people want I think it’s our job to show them that respect,” said Senator Holien in support of the bill.
Supporters also argue that SB 69 actually works to the benefit of Independent candidates by reducing the number of signatures required to get on the ballot. In 2014, an Independent was required to collect around 3200 signatures to get on the ballot in a statewide election. In the next election, an Independent candidate will only need 1100 signatures.“The Independents have become really a strong voting contingency and in many counties are nearing the numbers of Republican and Democrats registered, so it just seemed like a clean, uniform approach to registration for statewide candidate,” said Senator Rave, chairman of the Senate State Affairs Committee.
Opponents of the bill have been quick to criticize the premise of consistency established by SB 69 as well as the limitations against party voters signing Independent nominating petitions.
“Legislators have wrongly applied the standards of party primaries to Independent candidates, violating the entire premise behind non-party candidates,” said Pam Peak, Executive Director of The Centrist Project, and organization that supports Independent Senate candidates.
Prior to SB 69, party voters could not sign the nominating petitions of candidates for the opposing party. With party primaries closed to voters of the opposing party, voters could not sign the nominating petitions of candidates who they couldn’t vote for.However, Independent candidates collect signatures to appear on the general election ballot, in which anyone can vote.
“The law established by SB 69 is, in effect, inconsistent with the laws governing party candidates,” said Pam Peak.
Opponents of the bill point out that Independent candidates run as Independents to provide alternatives to party candidates. As a result, Independent candidates draw their support from party voters as much as Independent voters.
“When voters affiliate with either the Democratic or Republican political parties they don’t renounce their rights as citizens; so the idea that the South Dakota legislature would prevent them from helping to qualify another candidate for the ballot is anti-democratic,” said Nick Troiano, who last year ran as an Independent candidate for Congress in Pennsylvania’s 10th District.
“People run as Independents and make that decision if they feel the two major parties have failed to provide an adequate choice,” said Jay Davis in his testimony against the bill, “It should be clear that any voter can sign an Independent nominating petition and additional barriers to filing as an Independent or third party candidate are inappropriate if we truly honor our status as a democracy.”
“The whole premise of the bill violates the spirit of Independent candidates,” said Pam Peak. “The concept of an ‘Independent’ candidate exists to ensure that voters always have access to the ballot, so that the two parties cannot monopolize our democracy and prevent other viewpoints from being heard. SB 69 is an affront to anyone who believes democracy should be about the free expression and interchange of ideas.”
Opponents also argue that the changes made by the bill have real consequences for Independent candidates hoping to get on the ballot.
As demonstrated by the 2014 campaigns of Gordon Howie and Larry Pressler, Independent candidates garner significant cross-party appeal. Opponents have argue that by preventing those voters from signing nominating petitions, the two parties have made it markedly more difficult for Independent candidates to get on the ballot.
Whereas previously, Independent candidates could draw their signatures from the entire voter pool, now they are restricted to what SB 69 has defined as Independent voters, roughly 20% of the South Dakota voting population.
“[SB 69] dramatically increases the number of man hours required to collect signatures because finding people “qualified” to sign will be much more difficult,” said Pam Peak.
Opponents have also pointed out that voters registered as Independents are far more diverse in opinion than party voters, something that is reinforced by research from the Pew Research Center.
A 2012 Pew Research Center Study revealed that party voters have become increasingly homogenous over the years, shedding their moderate wings while Independents have become more ideologically diverse. Among Independents, 22% self-identified as liberal, 48% as moderate, and 30% as conservative.
This diversity further magnifies the difficulty that Independent candidates will now have finding voters to sign their nominating petitions.
In 2014 Gordon Howie ran as the conservative alternative to Republican Mike Rounds. His campaign drew significant support from Republicans dissatisfied with Mike Rounds’ establishment approach. Under the rules of SB 69, only 30% of qualified signers align with Howie ideologically. This means that, when collecting signatures, only 6% of people approached with be qualified and potentially willing to sign his petition.
“Democrat and Republican candidates can reliably draw upon party voters to collect their signatures because the majority of party voters agree with them,” said Pam Peak, “Independent candidates cannot, because Independent voters do not represent a unified political party. They are not supposed to.”
“The new rules introduced by SB 69 put Independent candidates at an extreme disadvantage to the party candidates,” said Pam Peak. “Rather than leveling the playing field, the two parties have once again tipped the scales in their favor in an effort to eliminate competition.”
The likely consequences of SB 69 are clear, according to its opponents, “It’s simple: higher hurdles to get on the ballot will lead to fewer Independent candidates being willing or able to run,” said Nick Troiano.
“I would submit that the whole bill, whether it is intentionally or unintentionally, is anti-competitive,” said Jay Davis, “You are going to have fewer contests, fewer meaningful contests, and fewer citizens getting involved in the process.”
The legislative record further complicates the apparent intent of SB 69.
SB 69 began innocuously enough. It was proposed by the South Dakota State Board of Elections, a bipartisan board chaired by South Dakota Secretary of State Shantel Krebs.
At the Senate State Affairs Committee hearing on January 23, Secretary Krebs stated that, “any election reform proposal should be and shall be proposed by that and approved by that elections board.” However, there is no record of the State Board of Elections discussing changes to Independent nominating petitions in the board agenda or minutes from its previous two meetings. According to Secretary Krebs, the board never discussed any changes to Independent nominating petitions, and the changes were not a part of the original bill as submitted by Secretary Krebs.
By artfully eliminating certain key words and phrases such as “may not,” the amendment introduced by Senator Otten completely reversed the meaning of the section.
Instead, the changes were introduced as amendments in the Senate State Affairs committee one week after Secretary Krebs’ remarks.
The original bill sought to change the time period in which nominating petitions could be circulated. In particular, the original bill amended one section of the South Dakota Codified Laws to move the starting date for circulating petitions from January to the preceding December.This same section, as amended by the 2015 legislature, 12-6-8, also includes language that states that Republican and Democrat voters could not sign the nominating petitions for candidates seeking to run in the opposing party’s primary.
However, the section makes it explicitly clear that, “The provisions of this section may not prohibit a person registered with party affiliation from signing either a petition nominating an independent or a nonpolitical candidate for office.”
By artfully eliminating certain key words and phrases such as “may not,” the amendment introduced by Senator Otten completely reversed the meaning of the section.
The language of the section, as amended by Senator Otten and the Senate State Affairs Committee, read as follows, “The provisions of this section
may not prohibit a person registered with party affiliation from signing either a petition nominating an independent or a nonpolitical candidate for office." (crossed out words indicate words that were eliminated as a part of the amendment.)
The Secretary of State's office was asked to provide information regarding the definition of Independent voters after the amendment was adopted. However, according to Secretary Krebs, neither the Secretary of State nor the State Board of Elections were consulted prior to Senator Otten's amendment being introduced.
"Let me phrase it this way: if I've got a problem inside the Republican party I've got one of two options. Option one: I can get involved, make my case and try to actually change the party. Option two would be then to say I want nothing to do more with you and then move on."In the House State Affairs Committee hearing on March 6, Secretary Krebs stated that SB 69, “answers the needs or respond to the challenges that we had seen this past election.” The aspects of SB 69 included in the original proposal by the State Elections Board were rooted in explicit problems experienced in the 2014 elections.
Senator Otten attempted to explain the reasoning and intent behind his amendment when it was first introduced:
“Thank you Mr. Chairman. One of the things that, as I've been out there in getting ready for an election that has bothered me is this topic of party affiliations and party affiliation in my mind strikes as actual thought process fairly distinct in itself that would separate two groups of people, the two party systems. But when we come to allowing other groups or other subgroups to come in and then say I want equal footing if...
Let me phrase it this way: if I've got a problem inside the Republican party I've got one of two options. Option one: I can get involved, make my case and try to actually change the party. Option two would be then to say I want nothing to do more with you and then move on to another party, but each time you make those decisions there's a causal effect that happens and one of those causal effects may be a lack of people that agree with you. Even saying that though is a choice, a matter of choice, and that is what elections are, a choice process. And so, I think that this is a good amendment."
Senator Brown clarified the remarks of his colleague, stating "What this amendment is intended to do is, say if there are Independent candidates then they shall get their signatures from Independents and not Republicans and Democrats." Senator Brown then introduced his own amendment, a corollary to Senator Otten's, that changed the number of required signatures from 1% of the total vote cast in the previous election to 1% of the number of Independents.
While Senator Brown’s comments explain the explicit language of the amendments, neither his nor Senator Otten’s remarks do much to clarify why the amendments were deemed necessary to introduce. None of the Senators who spoke on behalf of SB 69 respond to requests for comment.
Opponents of SB 69 are troubled by the Senators failure to include the State Board of Elections in the process. They see the absence of a clear need for the amendments as clues to the real intent of the bill.
“This bill provides further evidence that both major parties are willing to do anything, including taking away important voting rights, in order to defend their position,” said Pam Peak. “It will only add to voter disillusionment of the two major parties."
Minutes prior to Senator Otten’s amendment being introduced in the Senate State Affairs Committee, two Senators debated the merits of a different amendment allowing recognized political parties to nominate candidates by convention.
Senator Hunhoff argued, “You know, we can’t just pretend that [Independents don’t] exist, none might sit here at this table but they deserve our representation as much as Democrats and Republicans and this is just trying to make it possible for minor parties or Independent candidates to get access to the ballot.”
Senator Lederman responded, “We’re talking about having a very exclusive group of party bosses be able to select a whole slate of candidates at a convention that they decide on, and it just, to me it seems like it deprives the general public, the citizens of the state from making a decision and seeing whose on the ballot.”
Over the past seven years, the portion of voters who identify as Independent has grown considerably. The most recent poll released by Gallup shows Independent affiliation reaching a record height of 43% of the population. In contrast, affiliation with the parties has been on decline since 2008.
This national pattern is mirrored in South Dakota. Since 2006, the number of active voters in South Dakota has grown by over 17,000. In this same time, the number of registered Republicans has grown by only 1,600, and Democrats have actually lost 15,000 voters.
In contrast, the number of registered Independents has grown by 30,000 voters, a 40% increase in a period when the parties have been stagnant or in decline.
The reasons for this growth, in South Dakota and nationwide, are heavily debated, but most point to ongoing partisan gridlock and party entrenchment. According to Gallup, “in recent years divided control of government has more often than not resulted in partisan gridlock, and Americans' frustration with the frequent political stalemate is evident. Continued frustration with the government would likely encourage more Americans to identify as independents this year.”
Frustration with the government is certainly at an all time high. Another recent Gallup poll showed that Americans name the government has the single most important problem facing America.
It seems that voters blame both parties for the ongoing problems. A recent Gallup poll showed neither party with a favorability above 40%. According to Gallup, “for some time, numerous Gallup trends have been showing Americans largely displeased with government's performance and leadership. Through it all, at least one political party was reviewed well, but now -- perhaps because of the constant brinksmanship going on between Obama and the Republican Congress, but maybe for other reasons -- both parties are floundering.”
“Registration figures and public surveys don’t lie: voters are abandoning the parties in droves because they no longer feel they are being represented by the Republicans and Democrats and are seeking independent and third-party options," said Jim Jonas, a political consultant for Independent candidates and causes and former campaign manager for Independent Greg Orman's 2014 Senate campaign in Kansas. "This bill is a direct affront to those who have already switched their registration to unaffiliated/independent and those many voters who still belong to a traditional party but desperately want more voices in the conversation come election time."
“SB 69 is inconsistent with overwhelming public opinion,” said Pam Peak, “In a time when voters are crying out for change, Democrats and Republicans are silencing critics within their parties and eliminating competition at the ballot.”
“Every voter I spoke with - whether they were affiliated with a major party or not - expected the playing field to be level for all candidates,” said Nick Troiano. “The politicians who craft these rules are clearly not listening to their constituents.”
Author's note: Any direct quotes of South Dakota Legislators, South Dakota Secretary of State Shantel Krebs, or the remarks of Jay Davis, are drawn from the audio records available on the Legislative Research Page for Senate Bill 69. In addition to the audio records of the various hearings, floor discussions, and votes, this page also has the text of SB 69 in its various forms and the text of the amendments that were introduced. This is all available here.
Editor's note: This article was self-published by the author and has not been edited by any member of the IVN editorial team.