U.S. District Court Judge Lawrence Piersol will hear Libertarian Party of South Dakota v Gant on Thursday, August 28, at 10 a.m. This is the case over whether the party’s nominee for Public Service Commissioner, Ryan Gaddy, should be on the ballot. South Dakota law says a party cannot nominate a non-member. Gaddy filled out a voter registration card switching to the Libertarian Party shortly before the party nominated him at its August 9 convention, but the state takes the position that the change of party is not in effect until the card has been received and processed. The Libertarian convention was on a Saturday, so it was impossible for the change to be processed on the day it was filled out.

In any event, the party depends on the U.S. Supreme Court opinion in Tashjian v Republican Party of Connecticut, which said that the First Amendment’s freedom of association clause protects a party’s right an nominate a non-member if it wishes to.

The state takes the position that the U.S. Supreme Court opinion Clingman v Beaver means the law is valid. However, Clingman v Beaver is about whether a party can force the state to hold an open primary for it (assuming the party is entitled to its own primary), not about which individuals a party may nominate. Furthermore, 5 justices in Clingman v Beaver wrote to say that courts should be aware that major party legislators frequently write election laws for the illegitimate purpose of insulating the major parties from competition, and that courts should keep this in mind when they adjudicate ballot access cases.