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Cutters Win: Judge Lets Russell Cut Back onto Ballot; Oakes Cries Swamp!

Apparently the law is a mere technicality.

For the second time this summer, Judge Patricia Devaney has allowed an illegitimate candidate to appear on the general election ballot. Today Judge Devaney ruled that even though Lance Russell withdrew his name from the ballot for the District 30 Senate race in June, and even though state law says “no name so withdrawn shall be printed on the ballot,” Russell’s name may be printed on the ballot:

“There is no definitive language in either (state law) that unequivocally precludes an individual from being re-nominated, so long as it is done in a timely manner,” Judge DeVaney wrote in her decision.

She continued, “Given the legislative directive in SDCL 12-6-64 requiring the court to liberally construe these laws to carry out the intent of the voters, if lawmakers intended to preclude a previously withdrawn candidate from being renominated, it was incumbent upon them to clearly set forth such a prohibition” [link added; Bob Mercer, “Russell Can Be on the Ballot,” Aberdeen American News, 2018.08.14].

To be clear, SDCL 12-6-64 says, “The laws of this state pertaining to primary elections shall be liberally construed so that the real will of the voters may not be defeated by a mere technicality.” That one statute can reduce to meaninglessness two other statutes, all passed by the Legislature, strikes me as the pinnacle of absurdity and an invitation to mob rule, or party boss rule, or the rule of pretty much anything other than the rule of law.

I’m so mad, I’m just going to yield the floor to Gideon Oakes, the legitimate conservative candidate on the District 30 Senate ballot:

After weeks of uncertainty, backroom dealings and legal fights, a resolution to the chaotic District 30 Senate Republican primary has finally been found. Unfortunately, today’s decision was a major victory for career politicians in South Dakota.

By failing to uphold a plain-language interpretation of the law, the court has now set a precedent that politicians desperate to stay in power can effectively run for multiple offices, provided they can recruit enough supporters into precinct committee positions to re-nominate them each time they withdraw and move from office to office.

Senator Russell likes to talk about “the will of the people” and the 2,547 votes he received in the June primary, but in reality it was ultimately only 38 precinct committee members and one judge who put him back onto the ballot after he withdrew from the race.

What should be clear to everyone now is that personal ambition, political posturing and establishment political maneuvers matter more to Russell and to the South Dakota Republican Party than finding positive policy solutions for the voters of District 30.

Make no mistake, the South Dakota swamp is alive and well, and this hearing showed exactly why we need a change in Pierre. But while the political elite battle for a senate seat in courtrooms, the Gideon Oakes campaign will continue fighting for votes on doorsteps and in District 30 neighborhoods.

Regardless of who else is on the ballot, our message of life, liberty and limited government will stay the same as it’s been since we started this campaign back in March. We are giving the voters a better choice than either the Republican career politician or the Democrat candidate.

It’s time for an independent voice in Pierre. It’s time for Gideon Oakes [Gideon Oakes for District 30 Senate, Facebook post, 2018.08.14].

This summer’s big lesson on election law: lots of our statutes are meaningless. You can withdraw from a race and then jump back in. You can run for two, maybe three, maybe ten offices at once. You can royally botch your nominating petition, fail to present any legitimately notarized signatures, and still make the ballot. We’re just going to run elections whatever way the side with the most lawyers (and Russell had lawyers for the Pennington County GOP, the state GOP, and the state itself arguing on his behalf) want them run.

It’s as if we candidates were running a 10K. We were given the map before the start, and most of us have been conscientiously following the route. But some runners have cut through yards and parking lots, and since those cutters have a loud cheering section, the race officials are looking the other way. From all of us runners sweating an honest race, thanks for nothing, Judge.

Nobody likes cutters. Cutters shouldn’t win.


  1. Owen Reitzel 2018-08-14

    Now THAT is an activist judge

  2. Kal Lis 2018-08-14

    A few comments

    On the other posts, I said I wanted a court case for precedent. For good or ill, this establishes it.

    I disagree with judge when she asserts “Applying a liberal construction consistent with the will of the voters, a reasonable construction of the term ‘new’ in the context of this statute is that once there is a vacancy,….. any nomination effected through the operation of SDCL 12-6-56, whether it be the original or a different candidate, will result in a ‘new nominee.'” It is equally reasonable to see a “reasonable construction” of the term “new” to mean a different nominee.

    I wish he had not used the Trumpian “drain the swamp” phrasing, but Oakes came across pretty well in this video. A vote the bums out message should be part of any challenger’s repertoire.

    Finally, the judge threw down the gauntlet that the legislature should make their desires clear. I hope some Dems take her up on that and introduce clarifying language. I’d like see how many Republicans come along.

  3. Rorschach 2018-08-14

    The judge made the correct decision here. Now the voters will decide. After the voters decide, the victors can bring whatever bills they want to reform election laws.

  4. Kelly 2018-08-14

    The swamp is alive and well. Ravnsborg, Roetman and Lederman are all swamp dwellers. The corruption runs deep.

  5. John 2018-08-14

    “will of the voters”?! Political parties are not the voters; they are private cabals.
    Time recall / impeach this wild activist.

  6. Anne Beal 2018-08-15

    It is the SDDP which has availed itself of the use of central committtee meetings to select candidates. They put placeholders’ names on the primary ballots, then meet later to select the “real” candidate whose name will appear on the general election ballot.
    Whether these meetings actually reflect the will of the voters has been called into question.
    If you don’t like the way your Central committee voted, you need to step up and run for one of the precinct committtee spots yourself. Usually the candidates for those positions run unopposed, because nobody else shows up. Because they are unopposed, their names do not appear on the primary ballots, and most voters in their districts don’t even know who they are. But they show up at Central Committee meetings and state conventions, and the world is run by the people who show up.

  7. bearcreekbat 2018-08-15

    Judge DeVaney is first and foremost an imperfect human being who has committed her career to serving the public as a judge. She is called upon to interpret SD law in cases where two sides dispute the meaning of various laws. The losing side can typically fault her and even call her names, or derogatory labels. That is one of the penalties of serving the public.

    We are exremely fortunate to have disputes resolved by the judiciary rather than by duels or warfare. Faulting judges for their decisions is shortsighted as one side or the other will always be able to to find fault.

    I might disagree with Judge DeVaney ‘s ruling, but I recognize she deserves respect, not denigration, for her willingness to make tough decisions that advance our country’s efforts to maintain peace among disputing factions.

  8. Gideon Oakes 2018-08-15

    @bearcreekbat – Please know that Judge DeVaney has my respect. I was in the courtroom as an observer, and I can vouch that she thoughtfully, meticulously examined the arguments and case law. While the precedent set by her ruling makes me nervous and uncomfortable as a political outsider, I need to clarify that my “Swamp” comments were directed at the crafty motion makers, not at Her Honor.

  9. bearcreekbat 2018-08-15

    Thank you Gideon! That is refreshing to hear.

  10. Cory Allen Heidelberger Post author | 2018-08-16

    Anne, the SDDP has never violated the law by renominating a withdrawn candidate. I would oppose that practice as illegal reagardless of what party was doing it. It just so happens that in this case, the Republicans are embracing lawlessness. In the District 7 case, Democrats embraced lawlessness. Neither is acceptable.

    I look forward to proposing and supporting all sorts of legislation next winter to clarify statute on this matter and other election issues.

  11. Anne Beal 2018-08-16

    CAH, I happen to agree with you, the Central Committee was supposed to nominate a “new” candidate. The loophole regarding the “will of the voters” was specific to the primary, not the Central Committee. But I am not the judge and neither are you, and unless someone wants to appeal this, it stands.

  12. Cory Allen Heidelberger Post author | 2018-08-17

    Anne, I usually am wary of shouts of “mob rule,” since that’s usually just elitist Republican code for repealing initiatives. But even “the will of the voters” must respect the rule of law. If the Republican National Convention nominated Arnold Schwarzenegger for President, the courts would still be obligated to block his name from appearing on the ballot, because the law says he can’t be President. If the Pennington, Custer, and Fall River Republicans had nominated an 18-year-old for the District 30 seat, Judge Devaney would have had to block that candidacy, because 18-year-olds can’t legally run for Senate. If every South Dakotan signed an affidavit saying, “I want Lance Russell to be on the AG ballot instead of Jason Ravnsborg,” we couldn’t change that now, because Lance Russell has not been legally nominated for that position.

    Judge Devaney was wrong. She struck a blow this week against the rule of law and in favor of mob rule and the rule of lawyers.

  13. bearcreekbat 2018-08-17

    Bob Mercer notes today in a RC Journal editorial that the first sentence of SDCL 12-6-55 (“no name so withdrawn shall be printed upon the ballots to be used at such election”) “never came up during the more than two hours of argument made to Judge Delaney at the 3 p.m. Monday hearing.” If Mercer is correct, the Judge may have missed the point of the statute due to an insufficient presentation by attorney Sword.

    Meanwhile, Judge Devaney’s decision isn’t binding precedent on other circuit court judges. Another judge could read the statute differently and it would be up to the state Supreme Court to ultimately issing binding precedent on the question.

  14. bearcreekbat 2018-08-17

    Devaney not Delaney (Sorry! Jack was an old friend!)

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