I find a little confusion in my morning paper about who appoints replacements for deceased candidates who win election. Permit me to clarify.
In response to the unexpected death of former judge, state’s attorney, and Brown County Commission candidate Larry Lovrien yesterday, the Aberdeen American News asked what happens if Lovrien, whose name remains on the ballot and for whom many votes have surely already been early-cast, wins one of the three available seats. Brown County Auditor Maxine Fischer knows the commission will appoint the replacement, but she’s not sure which commission:
Fischer said if Lovrien is elected, the county commission is authorized to appoint his replacement. She said she didn’t know if the appointment would be made by the current commission or a newly seated commission in January. That’s a decision that will be made under advisement from the state’s attorney at a later date [Elisa Sand, “Lovrien Remains on Tuesday’s Ballot. What Happens if He Wins?” Aberdeen American News, 2018.11.01].
Secretary of State Shantel Krebs claims similar uncertainty exists in two Legislative races (District 19 House and District 30 House) in which deceased candidates remain on the ballot:
In cases in which legislative candidates have died prior to the election, replacements are named by the governor, Krebs said. It’s up to the governor’s office to decide whether that decision is made by Gov. Dennis Daugaard or the governor- elect in January [Sand, 2018.11.01].
Actually, Governor Dennis Daugaard has already stated any replacement of a deceased winner of a Legislative race will be made by the newly elected Governor, not Governor Daugaard. That’s not the Governor’s decision; it’s the law.
Per Article 4 Section 3 of the South Dakota Constitution, the Governor picks replacements for vacant offices. However, as we discussed last month on the unfortunate occasion of Rep. Chuck Turbiville’s death, the vacancy in the 2019 Legislature does not exist until the 2019 Legislature convenes. The Governor has no authority to fill a vacancy that does not right now exist.
The same is true for county commissions. SDCL 3-4-4 empowers county commissions to fill vacancies in their own ranks. If the vacancy leaves an even number of commissioners, the county auditor joins them to vote on a replacement.
But right now, there is no vacancy on the Brown County Commission. On November 7, after Election Day, there will be no vacancy. No vacancy will exist until the three winners of this year’s election are sworn in and unless Lovrien is one of those winners. On that swearing-in date, after the commissioners say, So help me Gaia, when they look around and say, “Oh, that’s right—no Larry”—that’s when the vacancy comes into existence. That’s when SDCL 3-4-4 comes into effect. That’s when Commissioners Kippley, Sutton, and the two live winners will join our next county auditor in choosing a replacement for that empty seat. The current commission can certainly make a recommendation, but they can’t make the choice.
So let’s be clear (and let’s see if State’s Attorney Chris White issues the same guidance!): Districts 19 and 31, if you vote for your deceased House candidates, you’re really voting for the next Governor, whom we do not know yet, to pick your Representative. Brown County, if you vote for Larry Lovrien, you are voting for the next commission and auditor, whom we do not know yet, to choose your fifth county commissioner.
Correct me if I am wrong but since Rep Turbiville was a sitting rep…the governor could technically appoint someone now b/c there is technically a vacancy.
The current governor can appoint someone for the remainder of Turbiville’s unexpired term, but not for the next term that begins next year if he is re-elected.
Ror’s got it right, DR. In Turbiville’s case, there is the real vacancy right now that Daugaard is choosing to leave unfilled and the potential vacancy that might come into being on January 8, at which point a new Governor will have the authority to fill such vacancy.