Deceased District 34 Candidate Remains on Ballot; Voters May Cede Choice to Governor

Rep. Dan Dryden (R-34/Rapid City) died yesterday. Rep. Dryden was running for re-election to the House, along with fellow Republican Senator Craig Tieszen and Democratic challenger Steve Stinson.

The statutory deadline for replacing vacancies on the ballot was August 9. The Secretary of State had to certify candidates to county auditors by August 16. Given the up-to-four-week process required to design, proof, and print ballots in time for the delivery deadline of September 21, it appears there is no way to remove Dryden’s name from the ballot.

Bob Mercer concludes that the two remaining candidates, Tieszen and Stenson, will become District 34’s Representatives. However, Secretary Krebs says votes for Dryden will still count and could keep Stenson out:

“If he wins, what would happen then is that the governor would end up, by state law, appointing a replacement, and that replacement would not be able to be done until after the canvas, the official election canvas, which is a week after the general election,” Krebs says. “At that time the governor would then be able to appoint for Dan Dryden’s replacement” [Lee Strubinger, “State Rep. Dryden Remembered as a Statesman,” SDPB Radio, 2016.08.30].

My morning Googling finds no clear process outlined in South Dakota law for discounting votes for a candidate who cannot serve. We thus appear to default to the sixth paragraph of Article 4, Section 3 of the South Dakota Constitution:

Whenever a vacancy occurs in any office and no provision is made by the Constitution or laws for filling such vacancy, the Governor shall have the power to fill such vacancy by appointment [SD Constitution, Article 4, Section 3].

Voters who mark Dryden’s name will essentially be voting for Governor Dennis Daugaard to make his twelfth appointment to the Legislature. From one perspective, such a vote is a vote not to vote, or to subordinate the voters’ will to the Executive Branch. From another perspective, instead of being left with no choice, voters in District 34 have a chance to cast a generic vote for “None of the Above,” or, practically, given the Governor’s past appointments, “Any Other Republican.”

When we raise our flags back to full mast, Stenson will have to shift gears from running against Tieszen and Dryden to running against Tieszen and Daugaard.

16 Responses to Deceased District 34 Candidate Remains on Ballot; Voters May Cede Choice to Governor

  1. Shantel is wrong about timing. The governor can appoint a replacement at any time for the remainder of Dryden’s current term. If Dryden wins the election, the governor can appoint the same person, or someone else, to Dryden’s next term.

  2. If the Democrat candidate cannot beat the deceased candidate I would say that they have a very weak candidate and I am sure Gov. Daugaard will appoint one of his favorites.

  3. True, Ror—the Governor could make two appointments, one right now to fill the seat in case District 34 needs someone to carry out the duties of that seat before Session, then another appointment after the election.

    But I’ll cut SOS Krebs some slack and say she did not appear to be commenting on the business of filling the current vacancy. Her comment on SDPB seems to be in the context of “What happens if enough voters mark Dryden’s name on the ballot?”

  4. Greg, perhaps the question should be whether the Democrat or any candidate should have to beat a deceased candidate. Wouldn’t it be just as logical to say that on this ballot, one of the candidates is no longer eligible, and so votes for that candidate will not count? Compare it to the Olympics: if the marathoner running in second place drops out before reaching the finish line, his county’s Olympic Committee doesn’t get to hand the silver medal to someone of their choosing; the silver goes to the next guy who crosses the finish line.

  5. Cory, I would agree the deceased candidate doesn’t qualify to be on the ballot. Remember this is politics. In this case I would bet that the deceased candidate will receive the most votes. All republican voters will vote Dryden so the Governor can appoint the next House member. I don’t like it when the voters don’t get to choose their own representatives. In most cases the voters are a little smarter than Gov. Daugaard.

  6. In November 2002, Sen. Dick Hagen (D – Pine Ridge) was elected to his 11th term in the SD legislature. Only problem was, he died September 22, 2002. New Governor Marion Rounds got to appoint his replacement, who was of course not a Democrat like Hagen. At least the replacement had an appropriate name, LaPointe.

  7. Can Dryden win a competitive house race he can’t run, rest his soul? Stinson (D.) has invested many months in the race and now the rules assure his certain defeat? Why not just withdraw?! Let us spend meager democratic resources elsewhere? Isn’t that a waste of state resources conducting that election?

    Rohr’s example of candidate Hagen’s (D.) September death, and subsequent election beating the Republican, leaving Rounds to appoint a republican instead, reveals a rule that makes little sense.

    It’s like Scalia (R.) dying and republicans decided to obstruct Obama’s nominee (or any) to the supreme court. There is no longer any reason to appoint MOR supreme court candidates like eminently qualified Garland Merrick if republicans will only manipulate the rules by wholesale obstruction whenever their turn comes around.

    Sen. leader Harry Reid was right in resisting changing cloture rules as he did recently, as long as he did. Democrats want to play by the rules. GOP not so much. GOP plays scorched earth politics contrary to the best interests of the nation, and the world.

    when daugaard ignores the weight of the vote in November, like rounds did, or merely appoints a successor if Dryden receives a majority, if that successor is republican contrary to a majority vote, then the rule needs to be changed.

    But republicans too need to feel the weight of arbitrariness against them when the red tide eventually flows out and down the Missouri.

    Perhaps our democratic government authorizes the president or governor to appoint successors universally. maybe that is a just rule.

    just grousing….

  8. Donald Pay

    My grandfather told me a story once about a deceased candidate. Like many of his stories, it sounded so outrageous it had to be either completely true or a fine piece of total fiction.

    Anyway this candidate for sheriff in Minnehaha County (he may have actually been the sheriff up for re-election) had been feeling under the weather. He had a campaign event to go the week before the election, and he dragged himself to it, looking like death warmed over. It was the last big event he absolutely had go to. His friends, which included my grandfather, urge him to go home and rest and pay a visit to the doctor the next day. Well, it turned out the candidate had a more serious condition than anyone thought, and he expired that night.

    What to do? His friends didn’t want to report the death, and risk him losing election. Who would vote for a dead man? So they put him on ice in the basement, made excuses that he was told by the doctor to rest for a few days, and waited, hoping no one would find out.

    Well, the dead man won. For some reason, I have forgotten the lesson I was supposed to learn from this story, but I assume it was something like, “Don, don’t give up even if you’re dead. You just might win.”

    I liked Dryden a lot. I found him straight-forward and honest. He’s the kind of guy that should win, even in death.

  9. Reid said he expects Republicans would throw up all sorts of obstructionist obstacles if Democrats regain the majority next year. He believes their strategy will be to once again portray the Democrats as unable to get things done, even though many bills stall because of Republican filibusters.

    Reid says Democrats might not have any other choice but to change the rules unilaterally through a controversial procedure known as the nuclear option.

    “What choice would Democrats have?” he said in the Times interview. “The country can’t be run this way, where nothing gets done.”

    thehill, today

  10. Ror, thanks for providing the Hagen precedent to make clear how the process works. The process clearly works against the will of the voters.

    Leslie, I agree that the rule makes no sense. The people should pick their legislators.

    We could avoid this problem with any number of reforms:

    (1) In a situation like this, ineligibility of a candidate after the ballot is set but before voting begins, the Secretary of State and/or county auditor should have authority to order emergency replacement ballots with the ineligible candidate erased. (Don’t give me any “four weeks processing” baloney: we can print a short stack of replacement ballots to cover the first few days of absentee voting in under 24 hours; we can order the rest of the ballots in a week.)

    (2) If the candidate become ineligible after the first absentee ballots have been handed to voters, we either do not count any votes for that ineligible candidate or we require the the county auditor to attach a note on bright pink paper to each ballot: “Candidate X is ineligible for the office of Y.” The pink note should also make clear the consequences of voting for X: “All votes for X will be ignored,” or, “If ineligible candidate X wins enough votes, the Governor will choose someone other than X to fill office Y.

    (3) Join the 25 states (per my research back in 2013) that fill every legislative vacancy by special election. (Only three states allow the Governor to pick replacements for legislators.)

    (4) Adopt our 2014 blog bill #102: fill every legislative vacancy with the candidate who had the next highest vote total in the last election. Under that rule, even if Dryden draws enough votes to win, District 34 is still guaranteed to have the two remaining candidates serve them. If there were no next candidate, then we go back to a special election.

    Voters should not be voting to surrender their authority to the Governor. The reforms I propose above could end that surrender and protect the will of the voters.

  11. Residency “No person is eligible for the office of representative who is not a qualified elector in the district from which such person is chosen, and a citizen of the United States, and who has not been a resident of the state for two years next preceding election, and who has not attained the age of twenty-one years.” He is not a resident or a qualified elector anymore.

  12. Interesting interpretation, William! If an unqualified person is on the ballot, are all votes for that person automatically negated, meaning that Dryden cannot “win” and open the door for the Governor to appoint a replacement?

  13. Yes caheidelberger. The Governor can appoint a replacement for the reminder of his term and the two remaining candidates are elected for the next term. As you stated earlier “All votes for X will be ignored,”

  14. Vote Lust

  15. Interesting, William—how have none of the press or the Governor picked up on this interpretation?

  16. William quotes the House eligibility requirements from SD Const. Article 3, Section 3. However, Article 3 Section 9 makes each house “the judge of the election returns and qualifications of its own members.” Does that mean Dryden’s election can’t be thrown out until the House convenes and seats its members, and that the Governor can’t appoint a replacement until the House finds Dryden ineligible?