Governor shouldn’t be the one to choose replacement legislators

Process reduces the power of voters and lawmakers

November 24, 2023 2:00 pm
The Senate floor in the South Dakota Capitol at Pierre. (Joshua Haiar/South Dakota Searchlight)

The Senate floor in the South Dakota Capitol at Pierre. (Joshua Haiar/South Dakota Searchlight)

Two Republican legislators from Rapid City have resigned. Sen. Jessica Castleberry of District 35 had to resign so she can get busy repaying $600,000 in pandemic relief funding she received through state government, in violation of the Legislature’s ethics rules. Rep. Jess Olson of District 34 said she resigned for health reasons. According to The Dakota Scout, there may be some questions about her ethics, as well; a business she owns has had contracts with the state.

It’s now up to Gov. Kristi Noem to appoint their replacements, a constitutional oddity that allows the executive branch of state government sway over the make-up of the legislative branch.

It’s been enshrined in the state constitution since 1947 that the governor will appoint legislative replacements in the event of a death or resignation while in office.

The process for filling a vacancy, as set forth in the governor’s news release announcing Olson’s resignation, seems quite straightforward. People in Olson’s district can apply or nominate others for the job. The governor’s office requires the candidate’s name, physical address, resume, cover letter and letters of recommendation. Candidates are then interviewed and the governor chooses the replacement.

It seems like a fairly transparent process, yet it leaves out the very people who will be served by the new legislators. The best they can do is throw a name into a hat. It’s the governor who decides, and people in Olson’s and Castleberry’s districts are left to be represented by someone who’s beholden to the governor for the new job.

There have been attempts in the past to cut the governor out of the process for selecting replacement legislators. The most recent effort, in 2021, failed gloriously.

Rep. Drew Dennert, a Republican from Aberdeen, sponsored House Joint Resolution 5002 which offered a constitutional amendment that took the replacement process away from the governor’s office.

It’s the governor who decides, and people in Olson’s and Castleberry’s districts are left to be represented by someone who’s beholden to the governor for the new job.

HJR 5002 didn’t include the mechanism for filling a legislative vacancy, leaving that decision to the statutory power of the Legislature. However, Dennert shared his vision of how that would work when presenting the bill on the House floor. As Dennert saw it, the process would be like the mechanism used when a candidate backs out of running for office prior to Election Day. The local central committee, made up of elected officials, would screen candidates and choose the best one.

While Dennert’s vision falls short of being a vote of the people, it does rely on citizens who know the district and its particular concerns. It’s not reliant on an executive looking for a new legislator willing to move in lockstep with the governor’s agenda.

“It should be the people of each legislative district who choose their own representatives,” Dennert told his colleagues.

Testimony on the House floor opposing the bill was generally of the “if it ain’t broke, don’t fix it” variety.

“We’re talking about changing the constitution, so let’s be careful,” said Fort Pierre Republican Will Mortenson. “Let’s be sure we’re addressing a clear and present problem.”

That sentiment echoed earlier testimony against the resolution in the House State Affairs Committee. Tony Venhuizen, who at the time was the governor’s chief of staff, said the current system was working fine. “There isn’t an obvious, better system to replace it,” Venhuizen said, warning that if decisions couldn’t be made in a new system about who should be the replacement legislator, vacancies would stay open.

Rep. Jamie Smith, a Sioux Falls Democrat, said his party was acutely aware of the governor’s ability to appoint replacement legislators. He said at the end of each week of the session the Democratic caucus was admonished to drive safely because the “governor appoints your replacement.”

Dennert’s resolution made it through the committee on an 8-5 vote before crashing and burning in the full House, 23-46.

If the make-up of South Dakota’s Legislature reflected that of some other states or the U.S. Congress, it would be split almost evenly between Republicans and Democrats. While that’s not going to happen here anytime soon, the way the constitution is written, in the event of a vacancy, the governor would have the ability to change the balance of power in the Legislature.

Running the executive branch is a big enough job without the governor having the constitutionally sanctioned ability to mess with the make-up of the Legislature. Rep. Dennert was on the right track. The current system may not be broken, but it could still use some fixing.

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Dana Hess
Dana Hess

Dana Hess spent more than 25 years in South Dakota journalism, editing newspapers in Redfield, Milbank and Pierre. He's retired and lives in Brookings, working occasionally as a freelance writer.