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A.G. Candidate Russell Must Withdraw from Senate Race Before Convention

Lance Russell in mirror images
If only he were twins….

Senator Lance Russell has been running for attorney general since last summer. He also declared his candidacy for reëlection to his District 30 Senate seat this winter. Russell is competing with former legislators Bruce Rampelberg and Patricia Shiery for the Senate nomination in the GOP primary June 5; he then plans to contend with John Fitzgerald and Jason Ravnsborg for the Republican nomination for attorney general at the state GOP convention starting June 20.

How can Russell run for both of these offices? Doesn’t South Dakota ban running for two offices at the same time?

No person may be a candidate for nomination or election to more than one public office except for the office of President of the United States or vice president of the United States… [SDCL 12-6-3, last amended 2015].

(And remember, that exception for running for President only applies if your name is John Thune.)

Russell is clearly a candidate for two public offices. Russell is doing something that state law says he can’t… right?

Not quite. Russell satisfies at least one of the criteria for “candidate” under the definition given in the campaign finance chapter, SDCL 12-27-1. He has organized campaign committees for each race (Senate committee here; attorney general campaign committee here ) and must file campaign finance reports for each.

But that definition does not apply outside the campaign finance chapter. For the definition of “candidate” relevant to the no-two-races restriction, we must turn to SDCL 12-1-3, which provides definitions applying to all of Title 12:

“Candidate,” a person whose name is on the ballot or who is entitled to be on the ballot to be voted upon for nomination or election at any election… [SDCL 12-1-3(1), last amended 2017].

Lance Russell is on the District 30 GOP Senate ballot right now, through June 5. Russell is not on any ballot for attorney general. He can talk all he wants about seeking the attorney general nomination, but he since no ballot for that race or entitlement to be on the ballot for such race exists at the moment, he is techincally, under SDCL 12-1-3, a “candidate” for only one public office.

When exactly would SDCL 12-6-3 kick in? If Russell wins his Senate primary, then that conflict arises at the moment on June 20 or whichever day they get to business* that the SDGOP convention chair opens nominations for attorney general and a delegate rises to say, “Mister/Madame Chair, I nominate Lance Russell!” Such a nomination would entitle Russell to be on the ballot to be voted on at convention to determine who will be the Republican nominee for attorney general. If Russell is still a Senate candidate, no one at convention can move to place his name in contention for the A.G. nomination.

Thus, to walk into convention and seek the A.G. nomination, a primary-victorious Russell must first formally withdraw his candidacy by filing the appropriate request with the Secretary of State (see SDCL 12-6-55). The SDGOP convention is in Pierre, and Secretary of State Shantel Krebs will surely be at convention (perhaps seeking a second term as Secretary after she loses to Dsuty Johnson in the primary?), so filing that withdrawal won’t be inconvenient, but Russell needs to do it before delegates start shouting his name from the floor.

But what if the convention delegates decide to go with the less controversial John Fitzgerald as their A.G. nominee? Or what if they lose their minds and nominate Jason Ravnsborg, the least qualified candidate for anything at their convention? Russell can’t hedge: he has to withdraw from the Senate race before the convention opens nominations, and before the delegates cast their final ballots.

Nor can Russell reverse a withdrawal. SDCL 12-6-55 says, “No name so withdrawn shall be printed upon the ballots to be used at such election.” Once a candidate withdraws from a race, there’s no changing one’s mind and jumping back in. Even if Russell can rig the Fall River, Custer, and Pennington District 30 county party committees that would fill any post-primary ballot vacancy (and folks out in the southern Hills in those positions are pretty Russell-y), the best Lance could get would be the appointment of his chosen successor to the ballot, not himself.

This tempting timeline is moot if Russell loses his primary… but remember: Russell switched chambers and beat incumbent Senator Rampelberg 59%–41% in the 2016 primary, and Shiery, while I like her, is an outsider who will have trouble hobbling the local Russell machine. The only thing that might deter another majority of District 30 Republican voters from picking Russell on June 5 is the knowledge that they would not really be voting for the man who aspires to be attorney general but for some unknown replacement that would be picked by the party central committee later this summer.

If Russell lives up to my expectations and wins the District 30 Senate primary, Ravnsborg and Fitzgerald will want to watch very closely to see if Russell’s official withdrawal is on file before the convention opens. If Russell doesn’t withdraw, no delegate can legally nominate him for anything at convention.

Meanwhile, Russell will want to count noses assiduously, because if he’s not walking into convention with 50% plus one of the delegates committed to him, he’ll be gambling an irretrievable Senate ballot spot for an uncertain A.G. nomination.

*Update 15:48 CDT: The newly released SDGOP convention schedule indicates that the election of constitutional officers takes place Saturday morning, June 23. Russell would thus have nearly three days of convention, June 20–22, to coax and cajole delegates and count noses before having to make his final decision and file his request to withdraw with Secretary Krebs before the end of business Friday.

9 Comments

  1. jerry 2018-05-12 11:19

    That boy don’t know if he is coming or going and he is kind of two faced, the Ying and the Yang of South Dakota politics. Tweedle dee and tweedle dum might be the best description, through the looking glass https://www.youtube.com/watch?v=ksnloU_LXyU

  2. Michael L. Wyland 2018-05-12 16:01

    I’d like a legal opinion on the definition of “candidate” in SDCL 12-1-3(1). Specifically, what does “on the ballot” and “any election” mean? Does it mean on the primary or general election ballot, or does it also include being on the ballot at a state [political] party convention? I suppose it depends on the exact meaning of “any election” under SDCL 12-3-1(2). Are party nominating votes by delegates at convention counted among “any election conducted under the laws of this state,” or are they elections conducted under the rules of the political party in question?

  3. Roger Cornelius 2018-05-12 18:45

    Who were republicans protecting when these laws were written?
    When Citizen Cory gets to Pierre one of his priorities should be cleaning up this arcane nonsense.

  4. John 2018-05-12 18:58

    Cory,

    A friend of me sent me this case about Russell running for 2 offices at once a while back.

    Seems to be on point to me, confirming your analysis. The second nomination is illegal, ie AG.

    http://ujs.sd.gov/uploads/sc/opinions/27956.pdf

  5. Cory Allen Heidelberger Post author | 2018-05-12 19:36

    Rossow and Koch—good cases, John!

    On page 6, we learn about the “capable of repetition, yet evading review” exception to the mootness doctrine. Questions about placement of candidates on the ballot might never be fully litigated by the time ballots are printed, but they keep coming up. We also learn on page 8 about the “public interest” exception to mootness. Instead of just saying “It’s moot!” and dropping it, the court can still rule on a moot matter to provide guidance for likely future conflicts.

    On page 11, we learn that “general election” is a single thing. We don’t have separate general elections in 66 counties for county offices; we have one statewide general election in which several statewide, legislative, county, and special district officials are chosen by the voters.

    The Rossow/Koch 2017 rulings definitely confirm that filing two petitions (or, in Russell’s case, a nominating petition affirmed by primary victory followed by a party’s certification of nomination) is illegal and that such a violation nullifies the second document but not the first. (Hey, is that how it works when we bust bigamists: the second marriage is annulled, but the first marriage remains valid?)

    And if the existence of a first candidacy renders the second candidacy null, that would seem to confirm the timeline I lay out above, that Russell absolutely must lose the primary or withdraw his Senate candidacy before anyone can initiate his AG candidacy at convention.

  6. Cory Allen Heidelberger Post author | 2018-05-13 08:47

    Michael, you ask exactly the right questions. The definitions of “candidate”, “election”, and “ballot are shaky points in my analysis.

    It is worth noting that parties conduct their elections at convention under the laws of this state. SDCL 12-5-17 mandates that conventions be held for the purpose of nominating candidates and requires at least 30 days’ notice to the Secretary of State of such conventions. SDCL 12-5-18 prescribes that convention delegates’ votes be weighted by their county’s vote for their party’s gubernatorial candidate in the last gubernatorial election. SDCL 12-5-21 authorizes the party nomination of attorney general and other statewide offices. SDCL 12-5-22 requires candidates for AG and other offices nominated at convention to receive majority vote at convention and sets the practical deadline (second Tuesday of August) for such vote to be held and certified.

    Are those statutes sufficient to establish that convention nominations are elections held under the laws of this state?

  7. Benz 2018-05-14 10:11

    The “Horror” of it all…

  8. Stace Nelson 2018-05-14 22:50

    @Cory, not a good day for DFP. The AG and SOS have both reviewed the circumstances of Senator Russell running for reelection as a senator and being amenable to receiving the Republican nomination for AG. They both concluded he is NOT in violation of the statute. Wait for it.. For once, Pat Powers was right!

  9. Cory Allen Heidelberger Post author | 2018-05-15 07:27

    Read closely, Stace. I did not say Russell is in violation of statute. I laid out a clear timeline that will allow him to stay in compliance with election statutes.

    Do you disagree with my analysis that a primary-victorious Russell would have to withdraw from the District 30 Senate race before anyone can nominate him for Attorney General?

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