Keintz Withdrew from District 1 House April 22; Vacancy Occurred After June 7

Sally Jo Sorensen of Bluestem Prairie notices that her Democratic District 1 Representative, Jennifer Healy Keintz, didn’t really want another term in the Legislature. Sorenson reports that the Eden Representative filed a nominating petition just to hold the spot for Democrats:

We noticed Keintz’s absence on the South Dakota Democratic Party’s list of 2022 Democratic Candidates and that at the Republican blog Dakota War College, 2022 Candidate List updated. The list of primary candidates at the South Dakota Secretary of State notes “(Withdrawn 04/22/2022).” List here, page 2.

Reached by Twitter direct message, Keintz wrote: “… I only turned in a petition as a place holder. They couldn’t process my withdrawal until after the primary” [Sally Jo Sorenson, “Placeholder: Incumbent Democrat Keintz Quietly Withdrew from SD District 1 House Race,” Bluestem Prairie, 2022.06.14].

The timeline seems strange. Under SDCL 12-6-9, Keintz automatically became one of the nominees of her party for District 1 House, alongside former Rep. Steven McCleerey, when no other Democrats filed to run for those two seats by March 29. Following SDCL 12-6-55, Keintz apparently filed her written request to withdraw from nomination with the Secretary of State on April 22. Yet Secretary of State Steven Barnett, who appears to be having an enormously difficult time reading and following election law this year, seemed to think he could not process Keintz’s withdrawal until after the primary. SDCL 12-6-8.1 says that any candidate who wishes to withdraw from the primary election must do so within two days of the deadline for filing nominating petitions. The primary withdrawal deadline this year was March 31; Keintz apparently filed her withdrawal on April 22. But Keintz wasn’t filing to withdraw from a primary. With only two Democratic candidates filed for the two District 1 House seats, there was no primary from which to withdraw. Keintz was withdrawing from her automatic nomination for the general election, and nothing in statute says the Secretary of State must wait until after the primary to process such a withdrawal. The Secretary could have processed and posted that withdrawal the day it was received, April 22.

Had the Secretary read the law correctly and acted promptly, District 1 voters and activists would have known that an incumbent was leaving an open House seat. So alerted on April 22, independents would still have had four days, until their deadline of April 26, to circulate and file a nominating petition for an independent candidate. The Libertarian Party, which held its convention on April 23, could have considered nominating a Libertarian candidate for that open seat. Instead, Secretary Barnett needlessly left the public in the dark and delayed performing his official duty for over seven weeks.

Strangely, Republican Secretary Barnett seems to have done Democrats a favor. By sitting on Keintz’s withdrawal until after the primary, Secretary Barnett has preserved the Democratic Party’s ability to choose a replacement candidate. SDCL 12-6-56 allows county party central committee members who live in a Legislative district with a vacancy on the general election ballot to choose a replacement candidate “If a vacancy occurs by reason of death or withdrawal after a primary election.” Technically, that statute says that withdrawals effected before the primary deny the party the replacement opportunity. That’s why illegal Republican District 1 House candidate Logan Manhart waited until the morning after the primary to withdraw his candidacy: he wanted to ensure that his party officials could fill his vacancy. Secretary Barnett may not have known what he was doing (and when it comes to election law, I’m becoming more convinced that is the case with perennial Pierre party flunktionary Steve Barnett), but by cross-applying an irrelevant statute, he ensured that the Democratic vacancy on the District 1 House general election ballot did not occur until after the primary, thus ensuring Democrats’ legal claim to replace Keintz with another willing Democrat, if they can find one by August 9.