John Hult, South Dakota Searchlight
The citizens of the Rapid City area have gone without full representation now for more than half of the 2024 legislative session – and may well go without until the session ends.
That reality wasn’t enough to convince members of the House State Affairs Committee to change state law on filling legislative vacancies.
On Thursday, the panel shot down a bill and a constitutional ballot question that aimed to prevent a situation like that again in the future.
Both proposals came from Rep. Tina Mulally, R-Rapid City. She represents District 35, from which former Sen. Jessica Castleberry resigned last year when it was revealed she’d accepted COVID relief funds for her business after casting a vote to allocate the funding. Shortly after Castleberry’s departure, District 34 Republican Rep. Jess Olson resigned her seat, citing medical issues.
Gov. Kristi Noem has chosen not to fill the seats until the state Supreme Court rules on the extent of the state constitution’s prohibition on legislator conflicts of interest – an issue on which she requested an advisory opinion during the fallout from the Castleberry situation.
Party leaders in Pennington County, home to both half-strength districts, urged Noem to move on the seats before the session, but Noem declined.
That delay has stunted the options for locally relevant lawmaking, Mulally said.
“I have no one I can call on in the Senate to carry any bill for me,” Mulally said. “Our district has directly experienced this impact of legislative vacancies. The lack of full representation can only delay critical decision making and addressing local needs.”
Legislative districts have two representatives and one senator.
Confusion over process helps tank vacancy proposals
House Bill 1188 would have forced the governor to choose, within 90 days, a replacement for vacant positions from a list of three candidates chosen by the central committee of the former office-holder’s political party. House Joint Resolution 5002 would have asked South Dakota voters to amend the state constitution to allow for such a system.
The state constitution currently gives sole authority to fill open seats to the governor.
Tonchi Weaver of South Dakota Citizens for Liberty testified in support of Mulally’s proposals. She’s a resident of District 34.
Weaver also noted Rep. Becky Drury’s move to District 34 from District 32. Drury was appointed to fill Olson’s House seat in District 34 on Jan. 16. Given that District 34 Sen. Mike Diedrich is absent from the session for medical reasons, Weaver said, that decision was one bright spot for residents of that district.
“Due to the illness of Senator Diedrich, our district would have had two vacancies, effective vacancies, had not the governor moved the representation of 32 over into 34,” Weaver said.
The committee’s lock-step unanimity in opposition to Mulally’s ideas was colored by concerns of practicality, and about the need to adjust the state’s founding document to fix what several committee members described as the unique set of circumstances surrounding the empty seats.
Nathan Sanderson of the South Dakota Retailers Association testified against Mulally’s proposals. The lobbyist told the committee that his membership has a keen interest in government affairs, and that the solutions offered would cause more problems than they would fix.
The clearest reason, Sanderson argued, is that legislative districts don’t align with counties. Some districts stretch across multiple counties, and some of those only include portions of certain counties.
In those cases – or in cases where counties lack a central committee – selecting three people to fill vacancies could devolve into tangled disputes that HB 1188 has no mechanism for unraveling.
“What happens when one central committee disagrees with the other?” Sanderson said.
Rep. Roger Chase, R-Huron, was among the committee members swayed by that argument. Districts 34 and 35 have been unluckily hamstrung by the Castleberry fallout, he acknowledged, but the current system typically serves citizens well.
“The governor is waiting for some type of guidance from the Supreme Court on waiting to get these vacancies filled,” Chase said. “Other than that, appointments have been made, and those seats have been filled by the governor’s appointments. I don’t think this is going to really be something that we need to tackle in the future.”
The committee voted down HB 1188 just before taking up Mulally’s joint resolution, which failed about 10 minutes later after comments from the same supporters and opponents who testified on the bill.
Fake ballot bill passes
Another Mulally bill before the committee, HB 1189, was also dispatched on a unanimous vote Thursday. It would have banned the use of taxpayer dollars for political activity, which would bar cities, counties, school districts and any other entity that collects tax dollars from hiring lobbyists. A parade of lobbyists argued that the restriction would hamstring agencies and shield lawmakers from their expertise on public affairs.
The committee did send one bill to the House floor.
HB 1239 came from Rep. Bethany Soye, R-Sioux Falls. It would ban the dissemination of phony ballots in electoral material. South Dakota already has a law prohibiting the circulation of misleading copies of ballot measures, which has been on the books since 1913. Soye told the committee that whole ballots ought to be covered, as well.
Rep. Scott Odenbach, R-Spearfish, testified in support of the measure. He handed out copies of a mailer, sent before the 2022 primary, that resembled an official ballot but “intentionally misstated the true contents of the ballot.”
If lying about a ballot measure is illegal, he said, lying about what’s on a ballot ought to be, as well.
The committee added an amendment to make clear that such deception would only be illegal if the ballot is “purported to be a real or sample ballot” as a way to give some freedom to political operatives who might use parts of a ballot in their communications, then passed HB 1239 on to the House floor with a 7-2 vote.
Rep. Erin Healy, D-Sioux Falls, joined Rep. Chase to vote against the measure. Healy said she’s not convinced it steers clear of restricting free speech.
Chase wasn’t convinced the change would make any difference.
“If we think this is going to stop misleading information on postcards, we’re sorely mistaken,” Chase said.