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I entirely share Tully's reaction to the news about Sen. Johnson, and hope for the Senator's speedy return to health. While I'm not unaware of the immense national significance of the GOPretaining the Senate, at some point, basic human decency has to come before politics.
I write separately only because the immense consequences that now hang in the balance demand some clarity on a point that has become muddied in the blogosphere and MSM, which is what will happen should the worst happen. South Dakota law -- specifically SD Code § 12-11-4 et seq -- provides, very clearly, as follows:
12-11-4. Temporary appointment by Governor to fill vacancy in United States Senate. Pursuant to the Seventeenth Amendment to the Constitution of the United States of America, the Governor may fill by temporary appointment, until a special election is held pursuant to this chapter, vacancies in the office of senator in the Senate of the United States.
12-11-5. Special election to fill senate vacancy. The special election to fill the vacancy of a senator shall be held at the same time as the next general election. The general election laws shall apply unless inconsistent with this chapter.
12-11-6. No special election if appointed senator's term expires at normal time. No special election, to fill a vacancy, may be held if the term of office of the appointed senator expires in the month of January immediately following the next general election that would occur after the vacancy.
Contra The Carpetbagger Report (which mistakes a provision applying to vacancies in the House of Representatives) and Tapped ("The Governor has to call an election within 10 days of a vacancy, to be held no more than 90 days later"), a vacancy in South Dakota's U.S. Senate representation is filled by the governor, pending the next general election, which is to say, Gov. Rounds (R) would fill the seat with a commission until 2008.
Update: on further reflection, there is an ambiguity here: § 12-11-4 et seq are perfectly clear, but they are in seemingly irreconcilable tension with § 12-11-1, which provides that:
If a vacancy occurs in the office of a senator or representative in the United States Congress it shall be the duty of the Governor within ten days of the occurrence, to issue a proclamation setting the date of and calling for a special election for the purpose of filling such vacancy … the election shall be held not less than eighty nor more than ninety days after the vacancy occurs.
Unless we assume this language is trumped by § 12-11-6 - which isn't an unreasonable conclusion, at face value - I don’t see how else those two provisions can be construed to give both effect, in which case we need to know which text was enacted more recently, since leges posteriores priores contrarias abrogant. Given the scarce statutory history included on the website, it’s hard to know, but § 12-11-1 has a complex and convoluted history, § 12-11-4 was added by single statute, so my bet would be that the latter is a more recent enactment. I lack the tools to confirm that from here, though.
Update 2: Prof. Jon van Patten proves details in the comments.