Senator M. Michael Rounds can’t read our state constitution, but I can read state law and recognize a statutory question which hasn’t been discussed yet but which we’ll need to make to accommodate Amendment V, the open nonpartisan primary proposal.
Amendment V will require a variety of changes in election law—e.g., new common signature requirements for all candidates’ nominating petitions, a new common petition deadline for all candidates. But thanks to MJL’s questions, I just realized we’ll need to change our primary run-off law. SDCL 12-6-51.1 currently requires candidates for U.S. Senate, U.S. House, and Governor to get at least 35% of the primary vote to advance to the general election. Absent a 35% plurality for any candidate in one party’s primary, SDCL 12-6-51.1 requires that party’s top two vote-getters to face off in a run-off ten weeks after the primary (this year, that would have been August 16). The winner of that run-off faces the nominee(s) of the other party(ies) and any qualifying independents.
Under Amendment V, there’s only one primary ballot. We can’t hold a run-off in August between two top sub-35% vote-getters to send just one to the general election ballot; under V, the general election is that run-off.
The problem here is the 35% threshold. Amendment V sets no plurality threshold. V may even exclude a plurality threshold with this one sentence in its Section 5: “The two candidates who receive the most votes in the primary election shall compete in the general election.” If I read that line strictly, I can argue V doesn’t allow the Legislature to qualify that standard by saying, “…and candidates must receive at least X% of the vote.”
Even if the Legislature can set a plurality standard, the math is confounded by the need to advance two candidates to the general. It’s usually not hard to pick one 35%+ winner; it’s harder to get two candidates out of a larger field to both win 35%.
Consider just the five candidates in the 2014 Republican primary for U.S. Senate (we won’t confound the math by speculating on how Rick Weiland, Larry Pressler, and Gordon Howie would have fared in a hypothetical V open nonpartisan primary against the GOP field—let’s just imagine the five Republicans were the only candidates). Mike Rounds won 55.5%, but no one else cracked 20%. Larry Rhoden and Stace Nelson combined got 35.9%. Had Rounds, Rhoden, Nelson, et al. constituted a V-field, with no plurality threshold, 55.5% Rounds and 18.3% Rhoden would have advanced to the general election ballot, while Nelson, less than a percentage point back, would have stayed home.
If we set a plurality threshold for V primary victory, what do we do if one candidate reaches it but the other doesn’t? Would Rounds go straight to the general while we conduct a second-place run-off between Rhoden and Nelson?
Also not addressed by V is the possibility of a tie for second place. The current run-off statute envisions that possibility:
However, if there is a tie for second place in the first primary election and there is no tie for first place, all tying second place candidates shall be placed along with the first place candidate on the ballot for the secondary election [SDCL 12-6-51.1].
Remember, tied second-placers survive for a run-off in the current system only if there is no 35% plurality winner, and they face each other and the first-placer in that run-off. Under V, one could argue that a Rounds-like front-runner, clearly surpassing the plurality threshold, should not have to fight it out with second-placers who failed to get a plurality. But if there’s a tie for second, we have to pick, because V clearly envisions two and only two candidates on the general election ballot.
Ties are far less likely than failing to get two candidates who both win 35% of more of the vote. I can live with doing away with the plurality requirement and letting the general election serve as the run-off that the current law would call for absent a primary plurality winner. But that change is one of many that legislators will need to be ready to consider if Amendment V passes.