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Tim Johnson and succession in South Dakota

Submitted by Simon on Wed, 12/13/2006 - 6:01pm

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.

Pointed that out to the TMV'ers

And in my reply in the post below. See also 12-11-6.

basic human decency has to come before politics.

Once again, Amen. Our prayers and best wishes for Johnson's swift and complete recovery, from what (hopefully) may be no more than a TIA or a temporary illness.

too true

Amen again.

Can't they even wait until the poor guy is admitted? I mean, it has the feel of the guy being taken away in an ambulance and the machinations are already beginning.

I sure hope the guy is OK. If it was a stroke, you never know. Let's all pray he's OK. The rules of engagement ought be suspended in favor of the aforementioned human decency.

I hope the ugliest and silliest partisans exercise abit of restraint and forebearance, and spare us from idiotic arguments. For example, should Johnson later need to step aside, I hope (vainly) to be spared from the argument that the Goveror really ought to appoint a democrat. And if Johnson remains in the senate despite suffering some impairment (in which case outside observers would have trouble distinguishing between cosmetic, physical, and cognitive), I hope no one engages in ugly ill-informed attacks suggesting that he ought to step aside. But that is indeed getting way ahead of things. It's hope and pray time.

should Johnson later need to

should Johnson later need to step aside, I hope (vainly) to be spared from the argument that the Goveror really ought to appoint a democrat.

That is an entirely forlorn hope, Brian - that argument has already been advanced in several fora. By self-described moderates, even.

point of order and reality

To be fair, I think that theoretically it ought to be the case that party control over a seat (and in this case a chamber of congress) should not shift party on random health outcomes. If for no other reason than to remove the temptation for shenanigans. As a substitute, I 'd consider the efficacy of an immediate run-off, or appointment by the party, or by elected reps listing a chosen successor, or by some sort of bi-partisan council.

My point here is really that the system is what it is, and IIRC in the haphazard instances where it has happened, history seems to have shown that when opportunities arise, a GOP appointer is going to find a way to appoint someone from their team, and democrats do likewise. So the rule is long-established. To the appointer's party go the spoils, and the other party is simply SOL. That's just the way it is. Calls for whichever governor is on the spot to be the first one to be a high-minded sport are just a waste of time.

I wonder how forlorn my hope is that some tinhatter won't suggest, sans evidence, that maybe Johnson was poisoned like that Russian spy. The connection, after all, is there for any idiot to make, so someone HAS TO make it, right?

As opposed to?

As opposed to sudden party-shifting by an incumbent who was just reelected under the banner of the party from which he quickly defected?

Them's the rules, and I rarely heard moderates (and certainly not lefties) decrying Sen. Jeffords' turncoat action based on such arguments.

The reality appears likely to be that Sen. Johnson's ultimate mental status will remain unknown for awhile, and the Democrats will begin the year with a bare 50-49 functional majority. Nobody will be in a rush to force him off the stage, and the political upheaval his replacement would cause will probably keep both sides from pushing much for it anytime soon.

Heaven forbid...

Heaven forbid that Sen. Johnson should make anything less than a full recovery. Volokh Conspiracy bolsters my point that the most likely scenario will be several weeks or months where we don't know what will happen. The only way for Sen. Johnson to be unseated, short of death, is by his resignation or impeachment. Obviously the latter's not going to happen, so that leaves only resignation. But to do that, he would have to recover enough function to make that decision. As Volokh discusses, the holding in U.S. v. McCormack means that the Senate cannot simply declare his seat vacant because of his incapacity. As long as he remains incapacitated, he will keep his seat until the next election.

Hopefully, of course, he will regain his capacity and return to his duties quickly.

WAY too late, Bryan

The system is set up for some "automatic" balance, and there's plenty of excellent arguments that Governors are better representatives for expressing their citizen's wishes than are state parties.

I wonder how forlorn my hope is that some tinhatter won't suggest, sans evidence, that maybe Johnson was poisoned like that Russian spy.

Extremely forlorn. It was in the comments at TMV within moments of the post. And over at DU.

plausible

Plausible maybe, but I have my doubts about "excellent." Even when you cook it as just achoice between the governors or the parties, ignoring other methods. Honestly, I'd rather have another election if the event causing the need for replacement happens so soon after the last election. I sort of like the idea of a bipartisan committee of two. Which would mean that the parties have to agree on someone or the seat goes empty. Or maybe a 2-person bipartisan committee that has say 3 weeks to agree on someone after which a new election is held that has to be paid for by the parties.

But then I'm already looking doubly forlorn. :-) I guess I'm way too good at predicting tinhatter idiotspeak. It has me a bit worried.

I had overlooked the posibility of Jim's suggested outcome, that Johnson, if too impaired to stay on effectively, might insist on staying on unless an agreement on a democratic replacement could be brokered. I think there are some precedents for such outcomes, aren't there?

So?

Plausible maybe, but I have my doubts about "excellent."

So? Name a better method. Justify said method using impartial criteria that reflect the goals of the system itself as determined under the Constitution, NOT under your personal preferences or perceptions. Don't forget that the federal government is a republic of confederated states, not a democracy, and that the Tenth Amendment applies. Justify your more-excellent more-plausible method using the Constitution.

Show why it's superior and still fits within the Constitution AND the laws of South Dakota. Don't forget that the laws of South Dakota are themselves the codified "will of the people."

still grouchy?

I wasn't aware I was on the committee to fix this. I'm pretty sure it's well within blog etiquette to say that I think that letting the governor pick adds an unnecessarily random element, and that it's also quite acceptable to toss out a few off the cuff suggestions without researching and studying in order to write an unassaultable 20-page term paper.

While you're at it, don't forget that the codified will of the people doesn't always reflect what their current will is. There's usually some gap. Isn't that why we spend time b!tching on blogs?

Besides, I'm pretty sure I started out by making clear that I didn't think it was all that big of a deal that the governor did the picking, that it was what it was. Doesn't mean I can't have an opinion about how it measures up against my ideal druthers.

Bottom line is that such regs (Gov picks replacement senator) come into play so rarely that most of the time no one gives 2 dumps about them. There's no constiuency for reform, and the only time there's an urgency is when it's too late to effect the situation that caused the urgency. So whatever got set up the first or only time anyone bothered to deal with it got locked in. So li,e I said, there can be quite a gap between the codified will of the people and the current will of the current people. Call that a feature if you want, it sounds to me like sometimes its a flaw.

I wasn't aware I was on the

I wasn't aware I was on the committee to fix this. I'm pretty sure it's well within blog etiquette to say that I think that letting the governor pick adds an unnecessarily random element, and that it's also quite acceptable to toss out a few off the cuff suggestions without researching and studying in order to write an unassaultable 20-page term paper.

So? You proposed several alternatives but won't defend or justify or rationalize any of them? You don't like the current system in South Dakota so you're just going to knock it without any substantive analysis at all, and then snipe at anyone who asks for same? Heh.

Gubenatorial picks are considerably less than "random." Senators represent their state in the federal government. The governor is the highest elected state official, and the appropriate person for determining an interim replacement to represent their state.

Your proposals of "bi-partisan councils" and such indicate that you're buying into the hype from the Dems, that any replacement must be made so as to satisfy them and maintain their national balance of power. That national partisan considerations must supercede the express codified wishes of the state. I'm sure the people of South Dakota have some choice words for partisan non-South Dakotans who want to tell South Dakota how South Dakota gets to determine who represents South Dakota in the Senate.

So whatever got set up the first or only time anyone bothered to deal with it got locked in.

Bull. SD set up their current statutes regarding Senatorial vacancy appointments in 1979, superceding the previous 1890 statute in regards only to Senatorial appointment. They did so immediately after a VERY similar situation, a Senator from South Dakota who suffered a stroke with three years left on his term, and stayed in office though unable to fulfill his duties as Senator. Yet they did NOT insert any clasue to remove a Senator for incapacity, just for actual vacancy. I'd say they put some serious thought into codifying what they believed was an appropriate solution to a Senate vacancy. Your preference would seem to be to call a committee that would stick their collective fingers in the wind and defer to the party that the vacating Senator belongs to.

And a technical point...

This didn't happen "so soon after the last election". Sen. Johnson was elected 4 years ago to this seat.

"Bipartisan" consensus appointees tend to be utterly bland, inoffensive, and basically useless in their jobs. They are appointed precisely because they blow with the wind. Both sides agree simply because they know the person is too inconsequential to matter and will be completely ineffective.

If Johnson recovers sufficiently to engage in the political scheming required to broker a resignation deal with the governor to appoint a Democratic replacement, then frankly he will have recovered sufficiently to do his job and will have no real need of resignation.

And if you would prefer to have another election, that's fine. You can lobby Massachusetts to provide for that in your state. South Dakotans decided some time back to provide for replacement this way.

If Johnson recovers

If Johnson recovers sufficiently to engage in the political scheming required to broker a resignation deal with the governor to appoint a Democratic replacement, then frankly he will have recovered sufficiently to do his job and will have no real need of resignation.

Not really. It could be something through simple discussions by his staff with him that he won't sign a resignation letter without a deal in place. That is something he could do while still not fit to serve and vote. It would not require Johnson's active participation.

However, I am hoping all of this discussion is moot.

that's a really good point

True. He does only have 2 years left. I buy the hypothesis that all this is much ado about what could well be little or nothing. And thankfully, most folks, at least those in positions of power and responsibility (IOW, not bloggers, centrist or right or left nutroot) will probably be reluctant to force the issue. It's bound to be 50-49 for the foreseeable future.

And most hopefully Johnson makes a full recovery and renders all this moot.

I don't see the conflict.

I don't see the conflict.

Let me take you through SDCL 12-11-1. Sentence One -- If a vacancy occurs in either a Senate or House office, the Governor must issue a proclamation setting the date for a special election. Sentence Two -- If there is a primary or general election within six months, the HOUSE election shall be held in conjunction with that election, otherwise the [House] election shall be held not less than 80 and not more than 90 days after the vacancy. Note, there is no provision in section one for when the SENATE special election is to occur, only the proclamation of a vacancy. The ellipsis in your quotation of 12-11-1 was crucial.

For the timing of the Senate special election, you look to 12-11-5 (next general election) and 12-11-6 (unless the term would have expired right after the next general election, in which case there would be no special election). Thus, in this case, the relevant provision is 12-11-4 -- appointment of a Senator by the Governor who serves until the January after the next general election (2008).

Jon Van Patten
Professor of Law
University of South Dakota School of Law

Thank you, Professor Van Patten!

I learned the futility of doubting law professors when I was a law student a few years back. (Well, before that, actually, as my dad is one!)

Thanks for stopping by and providing your insight.

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