Press "Enter" to skip to content

HJR 1002: Fill Legislative Vacancies with Member of Same Party

We have a fourth constitutional amendment in the Legislative hopper! House Joint Resolution 1002 would give voters a chance to change how we fill vacancies in the Legislature.

Currently, Article 3 Section 10 empowers the Governor to fill any Legislative vacancy. Adding his appointment last month of Michael Diedrich to the Senate, Governor Dennis Daugaard has exercised this power fifteen times.

HJR 1002 would allow the Legislature to decide how to fill vacancies, with one constitutional protection:

Any vacancy occurring in either house by death, resignation, or otherwise shall be filled in the manner provided by law. The person appointed to fill the vacancy shall be a member of the same political party, if any, as the person who previously held the legislative office [HJR 1002, new language proposed for S.D. Const. Art. 3 Sec. 10, 2018.01.19].

HJR 1002 seeks to check the power of the Governor. I’d suggest that HJR 1002 is a sign that certain Republicans are nervous that Senator Billie Sutton (D-19/Burke) is looking like he could beat whoever wins the Jackley/Noem primary, and they want to make sure that Governor Sutton couldn’t appoint Democrats to fill seats vacated by Republicans (and every Legislative vacancy in the last decade has been a Republican). Interestingly, Senator Sutton himself is co-sponsoring this measure, a sign that he’s (a) magnanimously democratic, (b) missing an opportunity, or (c) cleverly inviting his Republican colleagues to debate an issue that would inevitably involve someone saying on camera, “What if Billie becomes Governor?” thus providing free press and buzz to the Sutton campaign.

Most of HJR 1002’s other sponsors are from the far-right wing of the GOP, the folks one would expect to try drawing power away from the overreaching Executive and bring it back to the Legislature. Perhaps those party extremists are plotting to open up vacancies to special elections, where their extremist activist base might have an advantage over less fired-up moderates.

As a small-d democrat, I’d still rather take my chances with a special election than with any governor’s appointment. Bernie Hunhoff proposed an amendment in 2016 to call for special elections for Legislative vacancies; Republicans killed that idea in committee on its first hearing.

We should consider one wrinkle in HJR 1002: what if a legislator switches parties after the election, then leaves an early vacancy? Recall Eldon Nygaard, who won reëlection to the Senate as a Democrat in 2010, then defected to the Republican caucus before Session started? Suppose Nygaard had resigned a month or two after his party switch. What would HJR 1002 require? In a situation like that, the plain language of the amendment suggests we’d have to appoint a Republican. But if the constitution should take any note of political party, should the constitution protect the partisan choice of the individual or the expressed partisan preference of the electorate?


  1. Rorschach 2018-01-21 16:35

    This is so easy to circumvent that it is not worth passing. Let’s say there’s a Republican governor and a Democratic legislative vacancy. The governor appoints his favorite Republican who promptly re-registers as a Democrat in name only and takes the appointment. That person, once appointed either 1) switches back to Republican; or 2) presents him/herself to a skeptical Democratic caucus every day. Why bother with this charade? In a state where the parties are not competitive with each other, what difference does 1 seat really make?

  2. Cory Allen Heidelberger Post author | 2018-01-21 16:55

    Excellent point, Ror. The party clause seems useless, unless we add some clause requiring that the appointee must have belonged to the incumbent party for a certain period prior to the vacancy (perhaps at the time of the last primary election, to demonstrate that the appointee would have been eligible to run for the nomination that the vacancy-maker won)… and do we really want to introduce that much complication into a constitutional amendment?

    I question the whole concept of whether a political party has any legal or constitutional claim to any elected office won by a member of its party. No statute prevented Nygaard or Ryan Maher from changing party while serving in elected office. While mayor is a nonpartisan office, nothing stopped Mike Huether from switching from Democrat to independent while serving. If HJR 1002 were to pass and establish a party claim on an office for a full term, could we somehow derive from that an argument that an elected official can’t switch party and keep the office?

  3. o 2018-01-21 19:05

    This is the partisan nonsense that probably got so many of the legislature voted into the legislature, so I suppose perpetuating it is the next step in the process.

    Let’s just have impersonal party denotations for all races with the names TBD? The actual woman or man is secondary to the party anyway, right?

    I would have thought that especially the GOP would have learned from their experience with President Trump (and his ilk) that the party banner does not guarantee the quality of the candidate.

  4. Cory Allen Heidelberger Post author | 2018-01-21 19:35

    Note, O, that the partisan nonsense is coming from both parties: Democrats Hawley, Ahlers, and Lesmeister in the House join Sen. Sutton as co-sponsors.

Leave a Reply

Your email address will not be published.