Noem fills more legislative vacancies than Rounds administration

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PIERRE, S.D. (KELO) — It is the seventh day of the new year, and Gov. Kristi Noem (R-SD) has already appointed more legislative seats than both Governors Mike Rounds (R) and Dennis Daugaard (R) in their respective second years in office.

This week, Noem moved Rep. Kyle Schoenfish to the state Senate to fill a vacancy, and Marty Overweg takes Schoenfish’s seat in the House.

In her first year in office, Noem appointed six seats. Two of those were actually announced during the transition between Daugaard and Noem, but were picked by Noem.

KELOLAND News analyzed legislative vacancies over the past three administrations. This week, Noem surpassed now-Sen. Rounds in overall vacancies appointed, but currently sits at only half of Daugaard’s appointments overall.

Why does that matter?

Similar to the U.S. Constitution, Article II of the South Dakota Constitution separates the powers of government into three branches: legislative, executive and judicial.

Each branch of government is supposed to provide a check on the others. For example: governors can veto bills passed by the legislature, and likewise, lawmakers can override a veto. The judicial branch can rule a law unconstitutional, or the legislative branch can limit the scope of a law for the judiciary.

On the federal level, the President of the United States cannot appoint a member of Congress in the event of a vacancy.

A vacancy in the U.S. Senate, in most cases, is filled by the state’s governor. Some states require a special election. Three of South Dakota’s U.S. Senators were filled by appointment.

A vacancy in the U.S. House is filled by a special election, in most cases.

On the state level, there are a variety of ways to fill vacancies. South Dakota is one of 11 states allowing the governor to appoint a replacement.

A majority of states hold a special election to fill those vacancies. Some states that do allow the appointment by either the governor or Board of County Commissioners have a requirement to make the appointee from the same political party as the person leaving office.

That is not a rule in South Dakota and a recent example came at the beginning of the Rounds administration. Capitol News Bureau correspondent Bob Mercer reported that in 2002, Democratic Sen. Dick Hagen, of Pine Ridge died before the November election. He was, however, elected posthumously. In early 2003, Rounds appointed Republican Michael LaPointe, of Mission. LaPointe lost his run for election to Democrat Theresa Two Bulls, of Pine Ridge.

The other problem it could present is flipping votes. At least one of Noem’s appointments is expected to do that for industrial hemp.

Newly appointed Sen. Helene Duhamel will be a no-vote on industrial hemp. She replaced Sen. Alan Solano who both voted for industrial hemp in the 2019 legislative session and an unsuccessful attempt to override Noem’s veto.

Is a change coming?


Last year, two Republicans created a bi-partisan amendment to the South Dakota Constitution. It originally said that the legislature would decide how a person can be appointed and put in a requirement that the appointment is a member of the same party.

As the change made its way through both chambers in Pierre that was changed to putting the political party in charge of filling vacancies, or the governor, if the person has no affiliation. That bill passed the House.

When the Senate took over the bill, lawmakers re-wrote it to put the power back to the legislature, as originally proposed. However, it didn’t pass the full Senate.

Noem’s spokesperson was asked in November about the governor’s stance if the proposal were to come up again in the 2020 session, which opens next Tuesday.

“Governor Noem would want to see the detailed language on any possible change to the constitution, but on the whole, she believes the current process for filling legislative vacancies works well,” Kristin Wileman said to KELOLAND News.

One of the people against the bill in 2019 was Daugaard’s former chief of staff, Tony Venhuizen. He has been serving as an outside lawyer and aide throughout Noem’s first year in office and will join her team for the legislative session.

Venhuizen told KELOLAND News last year that the Noem administration saw three problems with the wording of the proposal.

First, Venhuizen said, political parties are officially recognized under state law and putting central committees in the state constitution could mean any future changes in state laws also could require constitutional amendments.

Second, Venhuizen questioned whether it would be wise for a party organization to name an otherwise-elected official. Third, participation in elections for political-party offices had tended to be “very low” and many races went uncontested, he said.

Mercer reported in a KELOLAND News article from Nov. 2019.

Similar proposals failed in 2018 and 2016.

How did governors get the authority?

Bob Mercer reports:

From legislative records, here’s what we can piece together.

Governor George T. Mickelson of Selby had just taken office in January 1947. The Republican previously was state attorney general and House speaker.

At that time, the Legislature met in regular session once every two years. It doesn’t appear there was a provision in the state constitution or in state law for how legislative vacancies should be filled.

On the last day to introduce legislation in the 1947 session, Representative W.M. Rader, a Hoven Republican, put in House Joint Resolution 6. The House State Affairs Committee recommended it pass. The House did, voting 67-3 in favor, after first rejecting an amendment from Representative Walter Lingo. The Highmore Republican wanted to require the governor to appoint a replacement from the same political party as the previous legislator.

The Senate State Affairs Committee approved it, and the Senate finalized it 29-2. Voters gave the go-ahead in the 1948 general election, with 103,396 marking yes and 78,505 saying no. At that time, the Legislature met in regular session once every two-year term. Voters amended the constitution in 1962 to require regular sessions every year.