Does South Dakota law call for a special election, or not?

[kay1864]

A provision in state law calls for a special election when a U.S. Senate seat is vacant, but Secretary of State Chris Nelson said it would not apply because Johnson's term ends after the next general election.

"If there's a vacancy, the governor appoints a replacement who serves until the next general election," Nelson said.

HOWEVER, the actual statutes appear to call for
- a special election within 90 days (12-11-1), AND that
- the special election is not until the next general election (12-11-5).

:wtf:

Can some DUer with a bit of legal experience clear up this apparent contradiction?

12-11-1. Special election to fill congressional vacancy--Time of election of representative. If a vacancy occurs in the office of a senator or representative in the United States Congress it shall be the duty of the Governor within ten days of the occurrence, to issue a proclamation setting the date of and calling for a special election for the purpose of filling such vacancy. If either a primary or general election is to be held within six months, an election to fill a vacancy in the office of representative in the United States Congress shall be held in conjunction with that election, otherwise the election shall be held not less than eighty nor more than ninety days after the vacancy occurs.

12-11-4. Temporary appointment by Governor to fill vacancy in United States Senate. Pursuant to the Seventeenth Amendment to the Constitution of the United States of America, the Governor may fill by temporary appointment, until a special election is held pursuant to this chapter, vacancies in the office of senator in the Senate of the United States.

12-11-5. Special election to fill senate vacancy. The special election to fill the vacancy of a senator shall be held at the same time as the next general election. The general election laws shall apply unless inconsistent with this chapter.

12-11-6. No special election if appointed senator's term expires at normal time. No special election, to fill a vacancy, may be held if the term of office of the appointed senator expires in the month of January immediately following the next general election that would occur after the vacancy.

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-11-6

Is it that the second half of 12-11-1 is referring to replacing House members, and that 12-11-5 is for replacing Senators?

And what is the point of 12-11-6? 12-11-5 seems to cover it.

[LynneSin]

1. The guy has neither resigned or is he dead

So all of this is a moot point.

[MonkeyFunk]

2. so we shouldn't

learn the answer to this? I don't see how it hurts to know.

[LynneSin]

8. It just looks creepy - that's all

Standard rule for replacing a senator who has resigned or died before their term is that he/she is replaced by the governor and that the governor will pick from their party not necessarily the party of the departing senator.

Usually with special elections someone is appointed who will serve until either the the class's term ends (Johnson is part of the class of 2008) OR when the next major election cycle comes through. Had Johnson's term come to and end in 2010 or 2012, then a replacement would have to run for re-election in 2008 to server until the end of the actual term. Just happens to be that Johnson's term ends in 2008.

[kay1864]

5. The media overwhelmingly disagree with it being a moot point

And lots and lots and LOTS of DUers are also discussing this eventuality.

[Individualist]

9. "The media overwhelmingly disagree..."

'Nuff said. Since when have the MSM had credibility? :eyes:

[kay1864]

15. Wasn't addressing credibility at all

But rather its validity as a discussion topic.

[Bobbieo]

18. Tunnel Vision - The smart people are thinking ahead!!!

[villager]

3. don't *all* terms essentially end after "general elections,"

when the new officeholder is sworn in?

[OPERATIONMINDCRIME]

7. General Elections Every Two Years. Senate Term = 6 Years.

[ellenfl]

4. big eddie is saying that the senate rules govern this, not state law.

i haven't seen any other senators appointed by governors. has anyone else?

ellen fl

[kay1864]

10. Sure. Zell Miller, appointed to replace Paul Coverdell in 2000.

[napi21]

21. Wasn't Frank Lautenberg appointed too? IOr was he just

placed on the ballot when the candidate running got into some legal trouble?

[MonkeyFunk]

Yes....

it's standard practice. Many senators have been appointed by governors.

Only 3 states - Oregon, Wisconsin and Massachusetts, require special elections.

Recently, Lisa Murkowski, Zell Miller, Jean Carnahan, Lincoln Chafee and many others were appointed by governors.

[ellenfl]

19. if 3 other states require special elections and sd does also,

why would the sd governor be responsible for appointing a replacement? is it not the state laws that determine that those other 3 states require a special election? if so, why don't sd laws hold the same weight?

is the state special election thing only when a republican governor is not doing the appointing?

ellen fl

[MonkeyFunk]

20. because

it's not clear that SD DOES require special elections. I see some conflicting possibilities in the law you cite, and certainly none of the media believe in your interpretation. Nor, evidently, does the SD Secretary of State. And the sources I found did NOT mention SD as one of the states that requires a special election.

I'm not a lawyer, so I don't know the answer.

Edit: I re-read your citation carefully, and now I believe that there will no special election. The special election clause you highlighted specifically refers to a Representative. The later section, referring to Senate special elections, say the election occurs at the next General Election, which in this case, is Nov. 2008.

[LynneSin]

16. Harris Wolford appointed by PA Gov Bob Casey Sr. to replace the late John Heinz

...Jeanne Carnahan was appointed by the MO Gov Holden to replace her newly elected late husband. And during the interim between Paul Wellstone's death and the start of the next congress, Jesse Ventura appointed some independant no-name to fill the seat.

Edit note:

Both Jeanne and Harris were required to run in a special election in the next major midterm election. Harris Wolford's was in 1990 and won only to be defeated in 1994, the year that Heinz's term would have ended, to Rick Santorum. Jeanne Carnahan ran in her special election in 2002 and lost to Jim Talent. Since the term was to end in 2006, Talent had to run again in 2006 for re-election and lost to Claire McCaskill.

As for the guy Ventura put in there, it was just to fill-in for the lame duck session at the end of congress. The seat was won by Norm Colemon

[OPERATIONMINDCRIME]

6. 1 = House, 5 = Senate, 6 = If Term Would've Expired At Next General Election Anyway.

Since senators serve 6 years, there are 2 general elections of which a special election could be held, whereas the third would be unnecessary due to the term expiring anyway.

[kay1864]

14. That's kinda how I read it...

but the word "senator" in 12-11-1 was throwing me for a loop. It's like the first half of #1 should stand on its own (proclamation by governor), then the second half should be separate for the House, the way #5 is for Senators.

Thanks OMC! :hi:

[HardRocker05]

11. When Janklow stepped down (SD US cong.) there was a special election, even

though it was pretty close to the next election. that's when stephanie herseth (D-SD) was elected; then she was re-elected at the next regular election.

[MonkeyFunk]

12. Janklow wasn't a Senator

the constitution clearly says House members must be elected. Senators can either be elected or appointed (in cases of vacancy).

[LynneSin]

13. House seats are different from Senate seats

House seats usually remain empty until a special election is held; whereas, senate seats are appointed through either the end of the term or the next major midterm election (whichever comes first)

[TahitiNut]

22. The differences stem mostly from the historical Constitutional provisions, imho.

Remember, the Constitution didn't originally provide for popular elections of Senators.

[Geoff R. Casavant]

17. Some states have general elections in odd years

There may be state offices with three-year terms, so general elections could occasionally be held in odd years. I don't know if this is the case with South Dakota, it'sjust a thought.

[MonkeyFunk]

24. That is true...

the odd state does seem to go off-year for general elections. But I just checked and SD isn't one of them.

[kiahzero]

23. It looks like 12-11-5 controls.

This is just another example of poorly written legislation.

[Geoff R. Casavant]

25. I finally have an answer re: 12-11-6

It has to do with when the election winner takes over.

The scenario is that the governor makes a temporary appointment until the time of the next general election.

If the departing senator had more than two years left in the term, then there is a special election under 12-11-5 at the time of the next general election, and the winner is sworn in immediately, presumably in November. The appointee, assuming he/she is not the winner, leaves immediately as well.

However, if the departing senator would have been up for reelection at the time of the general election, then there is no special election, only the general election, and the winner is not sworn in until the following January.

My thanks go to DUer MonkeyFunk -- he pointed this out to me, and I'm passing his (her?) insight on to you.