CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 3/31/2023 1

Allowing an Independent Gubernatorial 

Candidate to Name a Replacement Running Mate 

Myers v. Gant (Lawrence L. Piersol, D.S.D. 4:14-cv-4121) 

An independent candidate for governor challenged South Dakota’s 

allowing a major-party candidate—but not an independent candidate—to name a substitute candidate for lieutenant governor. The 

district judge ruled the proscription unconstitutional and issued a 

preliminary injunction in the candidate’s favor. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

attorney fees. 

On August 4, 2014, an independent candidate for governor of South Dakota 

filed a federal complaint in the District of South Dakota challenging the secretary of state’s denial of the candidate’s naming a replacement candidate for 

lieutenant governor following the original lieutenant governor’s withdrawal 

from the race.1 The complaint alleged that it was unfair to deny an independent gubernatorial candidate’s certifying a replacement candidate for lieutenant governor but allow a party candidate’s doing so, until August 12.2

 The 

lieutenant governor’s name “was not required to and did not appear on the 

[plaintiff’s] nominating petition.”3

On the day that the complaint was filed, Judge Lawrence L. Piersol ordered the clerk of court to electronically serve the complaint on the defendant secretary of state and on South Dakota’s attorney general.4

 Two days later, the candidate filed a motion for a preliminary injunction putting his 

choice for lieutenant governor on the ballot.5 Judge Piersol set the case for 

hearing on August 11.6 To accommodate a scheduling conflict, the parties 

consented to a postponement of the hearing until August 18.7

 The candidate 

amended his complaint on August 14.8

At the hearing, Judge Piersol ordered the candidate’s substitute lieutenant governor candidate placed on the ballot.9

South Dakota’s statutory scheme excluding [the plaintiff’s] true running 

mate from the general election ballot restricts the ability of [the plaintiff] 

and his supporters to choose a lieutenant governor candidate, to place the 

candidate on the ballot, and to vote for that candidate in the election. It is a 

severe burden on the associational rights of [the plaintiff] and South Dakota 

voters. This burden is magnified by the discriminatory effect of the scheme 

1. Complaint, Myers v. Gant, No. 4:14-cv-4121 (D.S.D. Aug. 4, 2014), D.E. 1. 

2. Id.; see Myers v. Gant, 49 F. Supp. 3d 658, 662 (D.S.D. 2014). 

3. Myers, 49 F. Supp. 3d at 661. 

4. Order, Myers, No. 4:14-cv-4121 (D.S.D. Aug. 4, 2014), D.E. 5. 

5. Motion, id. (Aug. 6, 2014), D.E. 9. 

6. Order, id. (Aug. 7, 2014), D.E. 11. 

7. Order, id. (Aug. 8, 2014), D.E. 18. 

8. Amended Complaint, id. (Aug. 14, 2014), D.E. 25. 

9. Order, id. (Aug. 18, 2014), D.E. 27; Minutes, id. (Aug. 18, 2014), D.E. 26. 
Allowing an Independent Gubernatorial Candidate to Name a Replacement Running Mate 

2 Federal Judicial Center 3/31/2023 

on non-party candidates. Thus, the State must show an interest of compelling importance to justify the heavy burden of meeting strict scrutiny analysis. 

. . . 

. . . Because the State has not shown that a compelling state interest is 

advanced by restricting the ability of non-party candidates such as [the 

plaintiff] from replacing a running mate, the law violates the Constitution.10 

In the election, the plaintiff received 4% of the vote.11

On May 27, 2015, Judge Piersol awarded the plaintiff $10,265.95 in attorney fees and costs.12

10. Myers v. Gant, 49 F. Supp. 3d 658, 667–68 (D.S.D. 2014). 

11. See Final Election Results, Sioux Falls Argus Leader, Nov. 6, 2014, at A5. 

12. Opinion, Myers, No. 4:14-cv-4121 (D.S.D. May 27, 2015), D.E. 35, 2015 WL 3419403.