AP and SD lay groundwork to circumvent law

[Larry Allen]

Associated Press writer Joe Kafka and South Dakota's Secretary of State Chris Nelson are apparently laying the groundwork for ignoring South Dakota's vacancy laws in the case that Tim Johnson is unable to return to the Senate.

http://news.yahoo.com/s/ap/20061214/ap_on_go_co/johnson_succession

GOP governor could name new senator

<snip>

State law would allow the governor to appoint a temporary replacement for a vacant Senate seat until the next general election in 2008, when Johnson's term expires.

<snip>

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.


But South Dakotas temporary appointment provision makes it clear that any appointee serves only until the vacancy is filled by a special election:

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-11-4

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.

And the special election provision is very clear that calling for a special election is mandatory. The special election can be held "in conjunction with" a general election or primary election only if it is less than six months away. Otherwise the special election must be held 80 to 90 days from the time of the vacancy.

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-11-1

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.

Mr. Nelson's suggestion that a temporary appointee could hold office until November, 2008 appears to be entirely made up. But what would Governor Mike Rounds do if his own Secretary of State told him (contrary to law) that he did not have to call a special election?

[longship]

1. It would mean that there would be a court case--mighty quickly.

Or so I imagine.
:kick:
Recommended and kicked for some damned good research.

[hlthe2b]

2. It has been my understanding from all reported to date

that the issue is not whether the Governor can fill a "vacancy," but that US law defines a vacancy as a resignation, expulsion, or death. Thus, even if "incapacitated" if a Senator does not resign, the controversy, as I understand it, is that there is no mechanism to step in. I just skimmed the posts you linked, but didn't see this addressed. Did I miss it?

[Kagemusha]

4. You bring up an extremely good point...

Sad that some Republicans are even discussing it like this. The good Senator isn't six feet under yet.

[ticapnews]

7. The media are disgusting

Aside from Major Garrett's whining about not being allowed to get his precious coffee at the hospital's Starbucks, a shrew on CNN this afternoon was discussing Johnson in the past tense - talking about how the Democrats had been expected to take over the Senate...

[Suich]

6. That has been my understanding, also.

These guys, including faux, are just blowing smoke...catapulting the propaganda, if you will! Repeat it often enough and it becomes fact...voila!

:hi:

[Larry Allen]

8. You are correct

I am assuming that Tim Johnson would resign if he could not return to work. But the Dems should at least require an election. A lot can happen in 2 years.

[Hosnon]

16. Is it U.S. law or S.D. law that defines vacancy? nt.

[hlthe2b]

21. Federal

I believe it is article/amendment 17 of the constitution, but I don't have it in front of me.. But the qualifications for election to (and being "seated") to the Senate and Congress are based on the Constitution. States can decide how to deal with a "vacancy," but Federal law defines a vacancy.

I've heard several NPR pieces today on this and read a couple of MSM stories. I'm not certain if it is ony Senatorial precedent or clearly spelled out that sets "vacancy" as death, expulsion, or resignation... That is the piece that to me is unclear.... Nonetheless, no State has ever "redefined" vacancy based on incapacitation and Federal law does not address it.

[Le Taz Hot]

24. Article XVII

...
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

[azurnoir]

3. more GOP "grave danceing"

I know Senator Johnson is not dead, but apparently they will stoop to anything to regain control.

[ticapnews]

5. Mike Rounds is a Grade A asshole

I've resisted commenting on this because I fully expect Senator Johnson to recover and continue serving.

But I do expect Rounds would name Roger Hunt or Bill Janklow to fill the position, given the opportunity. Rounds would also go ahead and allow his SoS to dictate that no election be held until 2008.

As for the courts, does anyone expect anything other than a 5-4 decision in favor of the Republicans if this makes it to the SCOTUS?

[rodeodance]

9. salivating nuts.

[Shrek]

10. A different statute applies to Senate vacancies

The special election coincides with the next general election:

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-11-5

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.

[Larry Allen]

13. In that case

In that case, the Dems could not require an election and it would be foolish for Johnson to step down, regardless of his condition. No wonder all this talk about incapacity.

[Igel]

25. You didn't read far enough.

12-11-6 says that if the term for the vacancy being filled expires the January following that election, it's to be treated as a regular election and not a special election.

Since his term expires in 1/09, the election in 11/08 isn't special. Just regular. The difference would be whether the replacement takes over immediately or in January.

But this is moot; there won't be a vacancy declared that the courts would uphold.

[MonkeyFunk]

26. Yes

it will be a general election, not a special election. But the important point is that ANY election will be held in Nov. 08, not before.

[MGD]

11. Republicans circumventing the law to undermine the Democratic party? No. That's just not possible.

I mean, they have always been so honest and forthright in the past.

[niyad]

12. as has been repeatedly pointed out today, the ap and ss of sd can SAY whatever they want. the

reality, however, is that, unless johnson dies or resigns, there is NO VACANCY for the governor to fill. simple, isn't it?

[Bakunin]

14. We need to march on Pierre NOW!!!

I am 12 hours away but I will do it. Who else will raise hell with me in front of the state house? We can talk or we can show the country we will take no more shit show who we are and what we are made of. I dont want to be asked in 30 years by a child ' What did you do about it?' and have nothing but a mouthful of regrets.

[niyad]

15. I live too far away--but, as I did after the SD anti-abortion legislation, I will be on the phone in

the morning.

gee, no tourist dollars as long as they ghoulishly dance on the grave of a very ill man, who just HAPPENS NOT to be of their party?

and, by the way, welcome to DU!!

[MonkeyFunk]

18. Before you bundle up and start marching...

the OP is wrong. the law does NOT call for a special election within 90 days for a Senate vacancy.

[Larry Allen]

23. MonkeyFunk is right

My original post was wrong, not because Johnson's term ends after the next general election as Nelson stated, but because it is the Senate, not the House. Different rules apply.

[MonkeyFunk]

17. No one's trying to circumvent any law

The article refers to a vacancy in the seat - meaning Johnson dies or resigns.

In such a case, the law states the Governor appoints a replacement to fill out the rest of the term. There will be no special election before November, 2008.

[suigeneris]

19. Well, maybe we should be thinking about Plan B

If Rounds ever does appoint a Republican I think it would be time for every red-blooded Democrat with a credit card company whose operations are in SD to let the CEO know that they will be switching to someone who's operation is elsewhere unless the credit card company can prevail upon the good governor to see the light.

[MonkeyFunk]

20. to see what light?

If Johnson leaves office, there's zero doubt that Rounds will nominate a Republican. Any Democratic Governor would appoint a Democrat - that's how it works.

People elect Governors knowing that one of their jobs is to appoint a Senator in case of vacancy. They elected a Republican governor. No one should be surprised if he does exactly what a Democrat would do in the same situation - nominate someone of his own party.

[karynnj]

22. It's ironic that the AP writer is named KAFKA

It is weird that the AP should have any standing in subverting the law.

[progressoid]

27. Oooh oooh, I know. Maybe we can get the Supreme Court to decide...

that always works out well.

[Redneck Socialist]

28. Unfortunately they're right

Here is the relevant SD law: http://legis.state.sd.us/statutes/DisplayStatute.aspx?Statute=12-11-5&Type=Statute

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.

Source: SL 1979, ch 99, § 2.

Whomever the governor appoints gets to serve until the next general election.

This of course, will only happen if he dies or resigns.