House Joint Resolution 1001 was a tolerable idea, checking excessive Executive power by allowing the Legislature to determine how Legislative vacancies should be filled. A committee amendment Wednesday turned it into a terrible idea.
In House State Affairs Wednesday, Representative Drew Dennert moved to amend HJR 1001 by striking prime sponsor Representative Tom Pischke’s language—
The Legislature shall provide the manner by which a person may be appointed to fill a vacancy occurring in either house. The person appointed under this section shall be of the same party affiliation, if any, as the person whose vacancy is being filled [original language].
—and offering this procedure for filling Legislative vacancies:
The Legislature shall provide the manner by which a person may be appointed to fill a vacancy occurring in either house by a person with no party affiliation. The party central committee, if any, of the person whose vacancy is being filled shall appoint a person to fill a vacancy occurring in either house [active language].
Problems:
1. What if the legislator creating the vacancy is an independent? Legislators raised this question in committee, and amender Dennert said the Legislature could pass statute to handle independent vacancies. Dennert is wrong: if the state constitution is amended to say party central committees pick replacements for legislators, the Legislature cannot create by statute a different mechanism for filling vacancies. Consider the situation in the status quo, in which Article 3 Section 10 gives the Governor exclusive authority to appoint replacement legislators. Suppose a legislator resigns but the Governor is on vacation, or in a coma, or simply refuses to appoint a replacement. The Legislature cannot pass a mere law saying, “If the Governor doesn’t appoint a replacement, we can.” Where the constitution vests sole authority, the Legislature cannot create alternative authority. Under HJR 1001 as amended, independents cannot be replaced.
2. What if the legislator lives in a district lacking a party central committee? Technically, only two Legislative districts in the state have “party central committees”: Lawrence (31) and Yankton (18). All 33 other districts either span multiple counties or occupy only portions of counties. The Democratic Party has “Legislative District Chairs,” but the only “central committees” enumerated in our party constitution are county and state. In 33 districts, there thus are no “party central committees” to answer the Dennert Amendment’s call to fill Legislative vacancies.
Again, legislators in committee said they’d just pass bills to fill that gap, but why write a glaring gap into the constitution?
Pischke’s original language addressed both of these situations, explicitly granting the Legislature authority to determine how to fill vacancies. Dennert’s amendment strikes the very authority he’s relying on to fill the gaps in his amendment.
3. Pischke continually miscited statute, claiming that Chapter 12-6, which defines how party officials fill vacancies on the ballot, also govern how we fill actual vacancies in office. Pischke was wrong: Chapter 12-6 says nothing about filling actual vacancies in office. It also makes no provision for replacing independents on the ballot. Absent a party structure, independent candidates who withdraw from an election cannot be replaced by anyone. Thus, the whole analogy to existing statute is flawed.
4. Pischke’s analogy is further flawed by conflating the role of party officials in selecting candidates and the public’s role in electing its officials. In the status quo, vacancies in the Legislature are chosen by the Governor, who has the mandate of the entire electorate to lead. Party officials are chosen by fellow party members; their mandate extends no further than the boundaries of their party. To let people like Ann Tornberg and Dan Lederman and their county-level counterparts directly choose our legislators violates constitutional government by popular election.
5. The Dennert amendment violates the popular will by requiring that a partisan legislator who won a fair election be replaced by a person with no party affiliation. If the public elects a Republican, it seems reasonable to respect their will by appointing a Republican replacement. In District 7 last fall, 86% of the votes said they did not want an independent representing them in the House; to constitutionally mandate that they be represented by a person with no party affiliation seems a radical departure from the expressed will of the people. (It also takes the fun out of being on the party central committee that has to skip over its members and pick an unaffiliated voter.)
6. But if the new HJR 1001 is supposed to be part of Dennert’s love for independents, Dennert’s amendment lacks language to ensure the choice of a real independent. With no clear criteria for having “no party affiliation,” HJR 1001 allows whatever party poobah is in line for his central committee’s appointment to run down to the courthouse an hour before the party meeting and re-register as an independent.
I wouldn’t mind putting the original HJR 1001 on the 2020 ballot for a good statewide conversation and vote. But Dennert’s hoghouse makes HJR 1001 not worth our time. As amended, HJR 1001 is incomplete, unworkable, and undemocratic.