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Submitted: March 15, 2011

Before SMITH, ARNOLD, and SHEPHERD, Circuit Judges.

The Constitution Party of South Dakota, Joy Howe, Marvin Meyer, and Mark Pickens brought an action against Chris Nelson, in his official capacity as Secretary of State of South Dakota, claiming violations of the First and Fourteenth Amendments. The plaintiffs’ claims relate to the Constitution Party’s efforts to place a candidate for governor on the 2010 ballot in South Dakota and challenge the constitutionality of two statutory provisions related to that process. The first provision, S.D. Codified Laws§ 12-5-1.4(1), requires candidates of new political parties in South Dakota who wish to be listed on the gubernatorial ballot to file a petition containing 250 signatures of individuals registered to vote as members of the new party. See also S.D. Codified Laws § 12-5-1. The other provision, S.D. Codified Laws § 12-1-3(9), permits only in-state residents to circulate such petitions. The plaintiffs asserted that both provisions infringed upon a number of their constitutionally-protected liberties, including their rights to vote, to equal protection of the laws, to free speech, and to free association, see U.S.Const. amends. I, XIV, and that § 12-1-3(9) violated the Commerce Clause as well, see U.S. Const. Art. I, § 8, cl. 3.

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