Lance Russell’s attempt to be his own replacement candidate is facing a legal challenge.
Hot Springs resident and registered Republican voter Heather Boche filed paperwork Wednesday in Hughes County Circuit Court asking for a writ of prohibition to stop Secretary of State Shantel Krebs from certifying Russell as a candidate for the state Senate.
Russell won a June Republican primary to run for state Senate, then withdrew to seek the Republican nomination for attorney general — which he lost — and then convinced party officials to nominate him as his own replacement candidate for the state Senate.
That angered Boche, who spoke Friday to the Rapid City Journal by phone.
"People were telling me Lance is a powerful person in Pierre," she said, referring to the state's capital city, "and I really don’t care. What he did was wrong."
Russell, of Hot Springs, is the incumbent state senator in Legislative District 30. The southwestern South Dakota district includes Custer and Fall River counties, and a portion of Pennington County.
In the June 5 primary election, Russell was nominated by Republican voters in District 30 to run for re-election. He received 61 percent of the votes to beat former legislator Bruce Rampelberg, of Rapid City (26 percent), and Patricia Shiery, of Hot Springs (13 percent).
But Russell was also campaigning at the time for the Republican nomination to run for attorney general of South Dakota, which was to be decided June 20-23 at the Republican Party’s state convention in Pierre.
Russell faced a dilemma because of South Dakota Codified Law 12-6-3, which says no person may be a candidate for more than one public office, unless one of the offices is president or vice president. The law prohibited Russell from being nominated for attorney general if he was already a candidate for the state Senate, so he withdrew his Senate candidacy on June 22.
As Boche’s application for a writ of prohibition referenced, the form that Russell filled out to withdraw his state Senate bid said he was requesting that his "name not appear on the ballot.”
Then, on June 23, Republicans at their state convention chose Jason Ravnsborg — not Russell — as their nominee for attorney general.
On July 27 in Custer, members of the Republican central committees of Pennington, Custer and Fall River counties who reside in District 30 gathered to choose a state Senate replacement candidate for Russell. He sought to replace himself, but he faced a potential legal hurdle in South Dakota Codified Law 12-6-55, which spells out the process for withdrawing from an election after being nominated and says, “No name so withdrawn shall be printed upon the ballots to be used at such election.” Additionally, SDCL 12-6-56 says withdrawn candidates may be replaced by a “new nominee.”
Nevertheless, the central committee members chose Russell to replace himself on the ballot. He received more votes than two other men, Rampelberg and Travis Bies, of Fairburn, who also sought the nomination.
Russell has not returned messages from the Rapid City Journal. The Hot Springs Star reported that Russell fielded a question during the July 27 meeting about the legality of his renomination.
"You know, anybody can sue over anything, but the will of the voters is the key in this situation," Russell said, according to the Star. "When you poll-down 72 percent of the vote last October and you get 60-some percent this cycle, to deprive you and to deprive the Republican Party of their candidate is a tall order for any judge."
There is also a state law, SDCL 12-6-64, which says, “The laws of this state pertaining to primary elections shall be liberally construed so that the real will of the voters may not be defeated by a mere technicality.”
The exhibits filed by Boche in her request for a writ of prohibition include a letter that South Dakota Democratic Party Chairwoman Ann Tornberg sent to Secretary of State Shantel Krebs on Aug. 1.
“The withdrawal and replacement of the same candidate for the same position is clearly not in compliance with South Dakota law nor with the administrative forms used by your office,” Tornberg’s letter said. “ … The South Dakota Democratic Party hereby demands that the Secretary of State not recognize Lance Russell as a legitimate replacement candidate for District 30 State Senate.”
Krebs replied with a letter to Tornberg on Aug. 3.
“The Office of the Secretary of State acts in a ministerial manner,” Krebs’ letter said. “ … Any other determinations which you urge me to make fall outside the scope of my authority and are for a court to determine.”
That same day, Krebs apparently certified Russell's candidacy. He is listed on the secretary of state's website as a candidate as of Aug. 3, and this time, he is listed as "Lance Steven Russell" instead of his former listing as "Lance S. Russell" — a possible nod to the state laws that says "no name so withdrawn" shall be printed on ballots.
In Boche's application for a writ of prohibition, she is represented by attorney James Sword, who has a private law practice but is also the state's attorney of Fall River County. Russell is a former state's attorney of Fall River County.
A state government lawyer representing Krebs asked Judge Patricia Devaney on Friday to add the South Dakota Republican Party and the Pennington County Republican Central Committee — without mention of the Fall River and Custer committees — as “indispensable parties” because of their interests in the case.
“Their absence from this litigation will impair and impede these two entities’ ability to protect those interests,” Krebs’ motion said.
Krebs also filed an answer to Boche's writ application, in which Krebs asserted that Boche's action should be dismissed because Boche "failed to join an indispensable party, namely the South Dakota Republican Party and/or the appropriate party central committee(s)."
Krebs is represented by assistant attorneys general Ann Mines Bailey and Kirsten Jasper. They wrote that the Republicans face a deadline of 5 p.m. Central on Aug. 14 to file a replacement candidate if Russell isn’t allowed to be a candidate.
According to Boche's writ application, the deadline in state law for certification of general election candidates to county auditors is Aug. 21.
Other lawyers who have provided notice of their appearance in the case are Sara Frankenstein for the Pennington County Republican Party Central Committee and Justin Bell for the South Dakota Republican Party.
There are two additional candidates who have been certified to run for the District 30 state Senate seat in the Nov. 6 general election. They are Gideon Oakes, a Libertarian from Keystone, and Kristine Ina Winter, a Democrat from Hot Springs.
— Capitol correspondent Bob Mercer and Journal reporter Christopher Vondracek contributed to this report.