Is this the actual law in South Dakota ?

[kentuck]

Thanks to annabanana for posting in another thread. I know there is a lot of speculation about what would happen if Sen. Johnson does not recover. We will keep our fingers crossed that this will never need to apply.
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Here is the law in SD:

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.

Source: SL 1890, ch 84, § 19; RPolC 1903, § 1956; SL 1915, ch 182, § 2; RC 1919, §§ 7214, 7308; SL 1929, ch 117, § 5; SDC 1939, §§ 16.0602, 16.1401; SDCL, § 12-11-2; SL 1974, ch 118, § 46; SL 1979, ch 99, § 5.

http://legis.state.sd.us/statutes/DisplayStatute.aspx?T...

[Jon8503]

1. Vacancy is the key word which is death or resignation:

While vacancies aren't uncommon in the Senate, they can only occur ``by death or resignation,'' said Richard Baker, the Senate historian.

``There either has to be a death certificate or there has to be a letter of resignation,'' he said. ``Nobody has the power to determine a vacancy for a person who is still living.''

Some lawmakers in the past have kept their seats in spite of long illnesses.

In 1969, two years into his fourth term, South Dakota Senator Karl Mundt, a Republican, suffered a stroke and was unable to continue voting. He offered to resign on the condition that South Dakota's governor appoint Mundt's wife to fill the vacancy.

Mundt's Seat

The governor refused, and Mundt kept the seat for the balance of the term, even while missing three years of votes. He remained on three committees until 1972, when the Senate Republican Conference stripped him of the assignments.

[stonecoldsober]

2. That comes after this...

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.

Source: SL 1979, ch 99, § 1.

[Infinite Hope]

4. So any appointment would last months at most. n/t

[JoDog]

6. So, let me see if I've got this straight...

Within 10 days of one of SD's senate seats is declared vacant , the governor must set the date of a special election to fill the seat. The date for this election must be within 90 days of the seat becoming vacant. But, the governor can appoint someone to serve in the seat between the day that the seat becomes vacant and the special election. The person appointed, essentially a placeholder for 80 to 90 days, may or may not be one of candidates put before voters in the special election.

Does that sound right?

[stonecoldsober]

19. Sounds about right to this layman

[Infinite Hope]

3. Well, I thought it was supposed to be special election in SD even for the Senate.

I found it odd that the SOS was saying the governor appoints. Perhaps there are overlapping statutes. But preferably there will be no need for any of this and he'll hold his seat capably.

[Infinite Hope]

5. Send the following to CNN (link included):

Go to this page and send the text below:
http://www.cnn.com/feedback/forms/form6a.html?2

Any appointment in S.D. is TEMPORARY until a special election is held. Since it is not within 6 months of a general election, a special election would have to be held.

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.
Source: SL 1979, ch 99, § 1.


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.
Source: SL 1890, ch 84, § 19; RPolC 1903, § 1956; SL 1915, ch 182, § 2; RC 1919, §§ 7214, 7308; SL 1929, ch 117, § 5; SDC 1939, §§ 16.0602, 16.1401; SDCL, § 12-11-2; SL 1974, ch 118, § 46; SL 1979, ch 99, § 5.

[MonkeyFunk]

7. Here's my take

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.

So, the first highlighted section says a special election will be held for either a Representative OR a Senator. However, the time limit is 90 days ONLY for Representatives.

Section 12.11.4 states that the Governor appoints a Senate replacement until the next special election.

Section 12.11.5 states that the special election occurs at the time of the next general election.


So the Governor appoints a Senator, who serves until a special election that will occur in November, 2008. Why is that a special election and not a General Election? Because the winner is sworn in immediately after the election, and does not wait until the regular end of the term.

[kentuck]

10. That's not my interpretation?

My interpretation is that if there is a general election within six months, the replacement would serve the full six months. If longer than that, there would be a special election within 80-90 days?

[MonkeyFunk]

11. I was pretty clear in my post

Read it again - the special election 80-90 day time frame applies to a Representative. The last sentence of the first provision clearly says "representative".

[kentuck]

12. Thanks funk!

I think your intepretation is correct in the reading.

[MonkeyFunk]

13. Glad to help

it's a little tricky reading through the different provisions and piecing them together. It took me awhile to figure it out.

I'd seen it posted repeatedly that a special election within 90 days was required, and was curious why no media seemed to be pointing that out, so I waded through it myself.

[Geoff R. Casavant]

8. It shakes out this way --

If Johnson dies, resigns, or otherwise creates a vacancy, the SD governor appoints a replacement, who serves until January 2009. That is the sum total effect of Sections 12-11-1 thru 12-11-6.

The 90-day special election provision in Section 12-11-1 only applies to representatives.

[MonkeyFunk]

9. Not quite

The replacement serves until November, 2008. The winner of the SPECIAL election (which coincides with the General Election) then takes office.

[Geoff R. Casavant]

14. Ordinarily a valid distinction

But in this case, since Johnson's term would have ended in January 2009, the election in November 2008 would not be a special election, but the usual general election, so the appointment would last to January 2009.

[MonkeyFunk]

15. Sorry, nope...

the November 2008 election is a special election.


Dianne Feinstein, for example, won a Special Election in 1992 to replace John Seymour, who was appointed to fill Pete Wilson's seat, when he won the Governor's race in 1990. She was sworn in on November 10th, thus giving her seniority over the rest of her "class" who were sworn in the following January.


Look at what happened this year in Tom Delay's district: There were TWO elections for the House: a Special and a General.

Similarly, Shelley Sekula-Gibbs won the special election, and was sworn in a few days later to serve until January. Nick Lampson won the General Election and will take office in January.


Edit: South Dakota would have both a Special and a General election in November, 2008.

[Geoff R. Casavant]

16. Sigh. Read Section 12-11-6 again.

To paraphrase, if the departing senator's term would have ended in the January following the next general election (as is the case here), then there is no special election.

[MonkeyFunk]

17. Yep

you're right.

I was wrong.

In Feinstein's case, there was still two years left on Wilson/Seymour's term.

[Geoff R. Casavant]

18. You'll be pleased to know

I passed your insight on to another thread where someone was asking why 12-11-6 was even necessary. I had no answer until you clued me in. I gave the credit to you.