The Rules Regarding Senate Vacancy

Bob Moss provides the following corrections to news stories stating that should the seemingly recovering Senator from South Dakota resign or not recover, the Governor would appoint his successor. Bob writes:

The Seventeenth Amendment, the text of which is easily accessible to the public, provides that

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The 17th Amendment, of course, provided for direct elections of Senators. Prior to that, Senators were selected by state legislatures (Article I, section 3). Reporters, editors, and everyone else except a few of your listeners appear to be reading Article I, section 3, par. 2, without noticing that the relevant text is in brackets, indicating that it has been amended:

[and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.]

In accordance with the 17th Amendment, South Dakota law provides that

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-11-1




12-11-1. Special election to fill congressional vacancy--Time of election of representative. 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. If either a primary or general election is to be held within six months, an election to fill a vacancy in the office of representative in the United States Congress shall be held in conjunction with that election, otherwise the election shall be held not less than eighty nor more than ninety days after the vacancy occurs.

Source: SL 1890, ch 84, § 19; RPolC 1903, § 1956; SL 1915, ch 182, § 2; RC 1919, §§ 7214, 7308; SL 1929, ch 117, § 5; SDC 1939, §§ 16.0602, 16.1401; SDCL, § 12-11-2; SL 1974, ch 118, § 46; SL 1979, ch 99, § 5.