UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISON
SOUTH DAKOTA LIBERTARIAN )
PARTY: and EXECUTIVE
COMMITTEE OF THE SOUTH
DAKOTA LIBERTARIAN PARTY
)
Plaintiffs, ) CIV 14-4132
)
v. )
)
JASON M. GANT, in his official )
Capacity as Secretary of State of South Dakota, )
)
Defendant. )
DECLARATION OF RICHARD WINGER
I, Richard Winger, hereby declare under penalty of perjury that the following are true and
correct to the best if my knowledge and belief:
1. I am above the age of 18 and a resident of San Francisco, California.
2. I am the editor of Ballot Access News, a 30-year-old print publication that covers
developments in the law on how minor parties and independent candidates may get on ballots.
See www.ballot-access.org. Also see my c.v. attached as Exhibit A. I have studied elections in all
50 states for over fifty years.
3. The history of political parties in the United States, both major and minor, shows that
state laws that prevent parties from nominating a non-member represent a severe burden.
Although parties dont wish to nominate non-members very often, when they do, the
consequences for those parties are very significant. The best way to illustrate this is to mention
instances from history when major parties and minor parties nominated non-members to run for
important public office.
1792: As President George Washington prepared to run for his second term, there were
already two parties in existence in the United States, the Federalist Party headed by Alexander
1
Hamilton and Vice-President John Adams, and the Democratic-Republican Party headed by
Thomas Jefferson. Both parties nominated Washington for re-election, and in some of the states
in which the presidential electors were chosen by popular vote, both parties ran competing slates
of presidential elector pledged to Washington. Washington did not consider himself a member of
any party. This is the first instance when parties in the United States nominated a non-member.
There were no laws back then prohibiting parties from nominating whomever they wished,
because there were no government-printed ballots and voters and parties prepared ballots without
any government involvement, a system that remained in place in all states until 1889, and in a few
states as late as 1922.
1840: the Whig Party nominated John Tyler, a Democrat, for Vice-President, in order to
gain political strength against the nations dominant political party, the Jacksonian Democratic
Party, which had not been defeated in any presidential election since it was organized in 1825.
1864: the Republican Party nominated Andrew Johnson, a Tennessee Democrat who
supported continuing to prosecute the Civil War, in order to make the point that winning the Civil
War was an issue of such importance that partisanship should be transcended.
1912: The South Dakota Republican Party nominated Theodore Roosevelt for President
and placed his name on the November 1912 South Dakota ballot as the Republican nominee, even
though Roosevelt had formed the Progressive Party that year and had joined his own party. The
South Dakota Republican Party exercised this power, notwithstanding that the national Republican
Party convention had chosen President William Howard Taft as its 1912 presidential nominee.
Tafts name did not appear on the South Dakota ballot in 1912.
1916: The Florida Prohibition Party nominated Sidney J. Catts for Governor in a
convention, following Catts defeat in the Democratic gubernatorial primary. Catts remained a
registered Democrat. He won the general election as the Prohibition Party nominee, even though
he continued to be a member of the Democratic Party that year and throughout his four years as
Governor.
2
1918: The California Democratic Party nominated Theodore A. Bell for Governor in its
primary, even though he was a registered Republican. However, California election law did not
permit him to accept the Democratic nomination, so he ran as an independent in the general
election, with the endorsement of the Democratic Party.
1924: The Socialist Party national convention nominated Robert La Follette for President,
and also the Farmer-Labor Party national convention nominated him as well. However, La
Follette was always a Republican. Although Wisconsin has never had registration by party, and
voters choose the primary ballot they wish in the secrecy of the voting booth, La Follette was a
member of the U.S. Senate during 1924 and 1925 (he died that year), and he always listed himself
as a Republican in the Congressional Directory.
1936: The Union Party nominated Congressman Thomas Lemke for President, even
though he was a Republican member of Congress at the time, and even though he ran for re-
election to Congress from North Dakota that year and was re-elected as a Republican, and listed
himself in the Congressional Directory as a Republican. As the Union Party presidential nominee,
he placed third in the presidential election and polled almost 1,000,000 votes.
1948: The States Rights Democratic Party national convention nominated Strom
Thurmond for President and Fielding Wright for Vice-President. Thurmond was the Democratic
Governor of South Carolina, and Wright was the Democratic Governor of Mississippi. The States
Rights Democratic Party polled 2.4% of the vote in November 1948 and placed third, carrying
four states.
1952: The Republican Party of Texas nominated Allan Shivers, the incumbent Democratic
Governor, for re-election, after he endorsed Dwight Eisenhower for President. Shivers continued
to list himself as a Democrat, although Texas does not have registration by party. Shivers was
also the Democratic nominee for Governor in 1952.
1952: it is plausible that when Dwight Eisenhower was nominated for President in
Chicago by the Republican National Convention on July 10, he was a registered independent.
Eisenhower was a resident of New York state at the time. The Eisenhower Presidential Library
3
has asked Jerry Goldfeder, an expert in New York election law, to research this, and he is doing so
now, although because some of the records have been destroyed, his research is difficult and has
been ongoing for some time.
1970: the New York Conservative Party nominated James Buckley for U.S. Senate, even
though he was a registered Republican. He won the election, defeating the Republican nominee
and the Democratic nominee, and remained a registered Republican during his term. This is the
last time the nominee of a party other than the Democratic and Republican Parties has been
elected to a seat in either branch of Congress.
1980: the Liberal Party of New York nominated John B. Anderson for president, even
though Anderson was a Republican throughout 1980. Anderson lived in Illinois, a state in which
the voter registration forms do not ask voters to choose a party or independent status. Party
affiliation in Illinois is determined by which partys primary the voter votes in. Anderson voted in
the Republican primary in 1980 and continued to list himself as a Republican in the Congressional
Directory that year.
2000: the Green Party national convention nominated Ralph Nader for President, even
though he was, and still is, a life-long registered independent. He is registered to vote in
Connecticut, a state in which the voter registration forms do ask the applicant to choose a party or
independent status.
2008: U.S. Senator John McCain gave serious consideration to asking the Republican
national convention to nominate U.S. Senator Joe Lieberman for vice-president, even though
Lieberman was a registered Democrat and has continued to be a registered Democrat ever since.
Years later, A. B. Culvahouse, a Republican Party election law attorney, told the press that if the
Republican Party had nominated Lieberman for Vice-President, that the ticket could not have
appeared on the ballot in certain states because of laws that forbid parties from nominating non-
members.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on August 30, 2014.
4
___________________________
___
Richard Winger
5