Ref re Vice Presidential Confirmation 2025 SDSC 35
Reference re Vice Presidential Confirmation [2025] SDSC 35
| Date | 3rd October 2025 |
| Justices |
Chief Justice TheLittleSparty |
| Held |
|
| Ruling | 3-2 |
| Applicable precedent |
MAJORITY OPINION by Justice Ivy Cactus
(with Justice Syndicality and Justice Britz agreeing, and Chief Justice TheLittleSparty and Justice Ed dissenting)
Introduction
[1] On the 2nd of October the current apparent Vice President, Pigeon, approached the Supreme Court privately about public confusion involving two lines of the Constitution and how they interact — with one reading resulting in him taking the mantle of Acting President, and one not. The court advised him to file it as an official reference case, which he obliged. This marks the third reference case this court has heard about the Vice President, which should be noted as an absolutely absurd number — approximately 10% of all cases heard this year.
[2] As this is a reference case of immediate importance, it was heard without specific argumentation.
Relevant Sections
[3] The two relevant sections of the Constitution are as follows:
Article 6§2.1: “If the President is without a Vice President for any reason during their term they must appoint a Vice President, subject to a simple majority in a public referendum.”
Article 1§2.3 “Electoral function, to confirm the judges and justices of the judiciary, confirm the executive officers of the departments of the executive, and confirm a Vice President in the absence of one.”
Interpretations
[4]<ref>Numbering fixed retrospectively.</ref> This results in an apparent conflict, with the line in Article 6 laying out a process for a new VP to take office: President appoints, followed by public referendum. The line in Article 1, however, asserts that the Senate has a hand to play in said process, being able to confirm the Vice President.
[5] The Supreme Court has laid out several tools for interpreting two disparate sections, such as determining intent (see: In re Replacement of KingRed31 [2020] SDSC 21), choosing the more specific section as an exception (see: In re Article 4 s5 of the Executive Act 2023 [2025] SDSC 9), finding if either is incompatible with a higher power, etc.
[6] None of these apply in this case, as it seems the two sections were written with separate intents, they both have the same scopes, and neither runs amok of the Bill of Rights (the only power higher than them).
[7] The option left, then, is to see if there is a way to holistically join the two sections. To read them as not two sections in conflict, but two sections that describe disparate parts of the same process.
- [7.1] Of course there may be a scenario where such is simply impossible, when one section reads “The President may not appoint judges” and another reads “The President may appoint judges”, or something of the like. This is a scenario that is ghastly to even imagine, and suffice to say that the decisions the court may make when faced with such a scenario are to be made if, knock on wood, it ever occurs.
- [7.2] The question remains of why the court treats different sections of the Constitution as inherently on equal-footing. This deserves deeper ideological examination at a later date, but for now can be understood, at the most basic level, as the result of them both being the same level of authority.
[8] So then, three things are described in the Constitution. The President appoints a new Vice President, said new Vice President is subject to public referendum, and the Senate has the power to confirm new Vice Presidential appointments. One can form these ideas into one singular process, wherein the President appoints, the senate confirms, and then the public votes on the new Vice Presidential candidate. As this reading forms the described process into one coherent flow, it is the ideal one to use. “The best of a bad situation”, so-to-speak.
- [8.1] One might have the thought “why choose that order? Why not have the Senate confirm after referendum” (mayhaps this option is enticing, considering it does not “split” the two requirements laid out in Article 6). No reason in particular, except that it is inline with similar processes within the Constitution (such as supervisor appointments). In times when there are multiple options, all of which seem equally valid, drawing upon historical and structural clues from other similar legislation can be the most elucidating thing one can do.
- [8.2] If this conclusion is hard to grasp, imagine a simpler scenario wherein the President’s section of the Constitution stated “the President may appoint judges”, and the Senate’s stated “The Senate shall have the power to confirm judge appointments.” In this simplified scenario no one would question the defined process being Presidential appointment, followed by Senate confirmation. This scenario is exactly the same as the one above, with the difference that it is not noted that the judges are subject to public referendum.
- [8.3] One may wonder why this is not a scenario where In re Replacement of KingRed31 [2020] SDSC 21 applies. Well for one, as mentioned in [6]<ref>Reference fixed retrospectively.</ref>, determining intent is difficult in this scenario as both sections, on equal footing, seem to have different intent. For another, though, the conclusion that the holistic reading results in is not “absurd and untenable”, nor is it otherwise harmful (although mayhaps a little obnoxious) — it is not the case that Senate confirmation is a massively harmful endeavor. KingRed, therefore, does not apply. Interestingly enough, Reference re Status of the Vice President [2025] SDSC 12 [9] (a case that is also rather instructive in regards to this one) discusses a similar problem. The Constitution doing something strange and counterintuitive is not, in and of itself, “absurd” for the purposes of KingRed.
- [8.4] It is never the case that the Constitution is “wrong” in its intent — an axiom that works great for a singular coherently written document, and not the patchwork living-document that it actually is. Still, though, one must go into every interpretation believing, fundamentally “every line here means something, why is it written this way and what is it trying to convey.” It is not the Supreme Court’s place to say those who wrote it were “wrong” in what they attempted to convey (if the words of the text, with a strictly analytical approach, seem to fly against any reasonable reading of their intent then it may make sense to say that the text is “wrong”, but this is a question of the word-choice and not of the processes and restrictions that the Constitution sets out to describe).
Outcomes
[9] Given it lacked Senate confirmation, Pigeon’s ascension to the Vice Presidency, and later Acting Presidency, is invalid.
[10] In the spirit of In re 39th Presidential Election [2020] SDSC 11 and In re 138th Senate Election [2025] SDSC 4, the court must then look towards proportional remedy. It is not the case that Pigeon took the Vice Presidential mantle malevolently: it was a genuine oversight by all involved. The actions that Pigeon took thus far as Vice President, then, will be allowed to stand.
[11] The question remains of how to handle the situation going forward. Given the court placed Senate confirmation as the intermediary stage between appointment and referendum, one may expect the Senate to vote and then for a new referendum to be held. Given, though, the time and resources that would be wasted (in a scenario where an unelected official becomes President) and the popular support already demonstrated for the Vice President (not to mention the somewhat arbitrary basis for the placement of the confirmation relative to the referendum), the Senate need only confirm Pigeon for him to retake his mantle. If the Senate vote is to fail, of course, he will not assume the position.
- [11.1] A caveat to the “prior actions standing” rule would be the appointment of a new Vice President following Pigeon becoming “President.” The Constitution is quite clear that an official holding the office of the President for any reason other than being the duly elected or otherwise lawfully rising to the position of President itself should not hold the ability to appoint a new Vice President (“the office of “Acting President”, which shall retain all of the responsibilities and powers associated with the presidency other than the official title and the power to appoint a new Vice President, should that role also be vacated”). Given this, it’s logical to say that the appointment of a Vice President during their unlawful Vice Presidency should not stand. Given the holistic approach, though, at the time the Senate confirms Pigeon, if they do so, then the appointment will stand, and the Senate must immediately vote on the new Vice President’s confirmation prior to referendum results being released.
Verdict
[12] The Vice Presidency of Pigeon is hereby invalidated.
[13] The Senate is to vote on confirming him immediately. At the time of said vote passing, if it does, he will resume his role.
[14] The results of the referendum confirming a new Vice President, Muffiln, are to be withheld until the time that the Senate confirms both Pigeon and Muffiln.
[15] All future midterm Vice Presidential appointments are to be subject to Senate confirmation prior to popular referendum.
DISSENTING OPINION by Chief Justice TheLittleSparty
(with Justice Ed agreeing)
[16] It appears to me that Justice Ivy Cactus is inserting a procedure not present within the Constitution in an effort to avoid the unpleasant task of noting where apparent error has occurred. Specifically, in that Article 1 and Article 6 contain contradictory lines, in my view, the more specific section regarding the appointment of the Vice President ought to be Article 6 which solely discusses the position of Vice President. In that section, a procedure is illustrated which is self-contained. Article 1 meanwhile intrudes in such a way as to cause issue, and thus appears to me to have been an oversight error as it disrupts an otherwise contained process with an additional hurdle which is otherwise reserved for the Supervisors. This injection of a hurdle, combined with the nature of the hurdle being restricted to much more significant roles than the Vice President, clearly suggests error where the simplest solution and thus the best solution is to remove the erroneous passage.
Citations
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