The West Virginia Secretary of State Refuses to Hold a Special Election in 2010

           The West Virginia Secretary of State has taken the position that the special election to replace Senator Byrd will not occur until November 2012.  She relies on Robb v. Caperton, a 1994 West Virginia Supreme Court case which applied the same vacancy statute in the context of a judicial vacancy. 

            Robb does provide support for the Secretary’s statutory interpretation, but there are questions whether the court’s reasoning should be extended to the current situation.  In Robb, a circuit judge resigned on April 20, 1994, leaving an unexpired term that would last until December 31, 2000.  The question was whether the vacancy should be filled by election in November 1994 or in November 1996.   

            The court began its analysis with the West Virginia Constitution.  It found the general vacancy provision of Section 7, Article IV, which was “keyed to ‘the next general election,’” inapplicable to judicial vacancies because the latter were governed by the more specific and detailed provision of Section 7, Article VIII.  Under Article VIII, the Governor is directed to fill a judicial vacancy without any election if the unexpired term is less than two years or, if so provided by law, no more than three years.  For vacancies of more than three years, the Governor is directed to issue a directive of election to fill the vacancy “in the manner prescribed by law,” and, in the meantime, to fill the vacancy by appointment. 

            The court found the phrase “in the manner prescribed by law” critical to the analysis of when an election to fill a judicial vacancy should take place.  The court held that “[i]t is clear under W.Va. Code, 3-10-3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has ‘timely filed a certificate of candidacy, [and] has been nominated at the primary next following such timely filing[.]’”  Since the date for filing a certificate of candidacy had passed in early February, the court concluded that the election to fill the vacancy could not be held until November 1996. 

            The statutory language construed by the court is the same language that applies to filling vacancies for other offices, including that of U.S. Senator.   Given that the court thought this language was “too plain” to be interpreted as requiring an election in November 1994, the Secretary would seem to be on solid ground in reaching a similar conclusion with regard to the Byrd vacancy.  Nevertheless, the Robb court’s conclusion was fundamentally premised on the language of Section 7, Article VIII of the West Virginia Constitution, which applies only to judicial vacancies.  Moreover, the court appeared to assume that vacancies in non-judicial offices were required to be filled, under the provisions of Section 7, Article IV, at the next general election, notwithstanding the fact that such offices were governed by the same statutory language.  It is therefore uncertain whether the reasoning of the Robb case should apply here. 

            If the statutory language is construed as the Secretary of State suggests, the results are perplexing, if not absurd.  It is hard to see why the legislature would have chosen a two year and six month cutoff for holding elections, if the intent had not been to have a special election to fill the last two years of the term in question.  When asked about this at her press conference, the Secretary of State was unable to offer an explanation of a legislative policy that might be advanced by this result.    

            Finally, the Secretary of State’s interpretation of the statute is, at best, in considerable tension with the fundamental policy of the Seventeenth Amendment, namely that Senators be elected by the people.  There would seem to be ample grounds for mounting a legal challenge.   

When Should West Virginia Hold a Special Election to Replace Senator Byrd?

            As mentioned in my last post, I think that the Governor of West Virginia is likely obligated to call a special election to fill the vacancy caused by Senator Byrd’s death.  But when is such an election to take place?  The West Virginia statute does not directly address when the special election is to take place.  Instead, it states that for certain offices, including U.S. Senator, a temporary appointment “shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.” 

            It is apparently inferred from this language that the special election is to take place on the date of a general election.  This, at least, seems to be the position of the West Virginia Secretary of State, whose website states that in the event of a Senate vacancy: “[T]he Governor appoints someone to serve until the unexpired term is filled at the conclusion of the next candidate filing period, Primary Election, General Election and certification.  The winner of that General Election fills the balance of the unexpired term.” 

            It is not exactly clear what this means in the current context.  In West Virginia, the deadline for filing to compete in this year’s congressional primary was January 30, and the congressional primaries were held on May 11.  It may be argued, therefore, that it is too late for anyone to run for the vacant Senate seat in this year’s general election.  Under this interpretation, the special election would not be held until November 2012, in which case the winner would serve only the remaining two months of Byrd’s term. 

            On the other hand, it is hard to see how this interpretation could be squared with any sensible legislative policy.  Presumably the reason why the West Virginia legislature provided for special elections only when a vacancy occurs more than two years and six months before the end of a term is that it did not believe it worthwhile to hold a special election to fill shorter periods of time.  So either the legislature believed that a special election could be held at some time other than the general election date, or it believed that the special election could be held on the next general election date (so that there would be more than two years left in the Senate term).  Interpreting the statute to make it impossible to hold a Senate special election until the November two months before the original term expires seems inconsistent with the legislative intent. 

            To make matters more confusing, the Secretary of State’s website also contains the following: “Vacancies in the offices of Secretary of State, State Treasurer, State Auditor, Attorney General, and Commissioner of Agriculture are filled by appointment until the next election that is more than two years and six months following the vacancy.”  Vacancies in these offices are covered by the exact same language as governs Senate vacancies, so it hard to see how these offices could be treated differently than a Senate seat.  It is also hard to see how the Secretary’s statement can be squared either with the statutory language or with the principle, also stated on the website, that “[t]he West Virginia State Constitution provides a clear mandate that all elective state and local offices should be filled by the voters as soon as possible after a vacancy occurs.” 

            In any event, if the Governor and/or Secretary of State refuse to hold a special election for Byrd’s seat prior to November 2012, it seems very likely that there will be a legal challenge.  West Virginia voters may plausibly contend that state law requires a special election to be held this November, or if not then as soon as possible.  They may also raise the federal constitutional issue not decided in the Illinois case, ie., whether an unreasonable delay in holding a special election to fill a Senate vacancy violates the language and purpose of the Seventeenth Amendment.

Is a Special Election Required to Fill the Byrd Vacancy?

           Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in U.S. history, passed away today.  R.I.P. 

            The vacancy created by Byrd’s death will be filled by the Governor under § 3-10-3 of the West Virginia Code.  This statute provides that if the unexpired term of certain vacant offices, including that of U.S. Senator, is less than two years and six months, the appointment will be for the remainder of the unexpired term.  It should be noted that this provision raises some serious constitutional questions under the Seventeenth Amendment, particularly in light of the Seventh Circuit’s recent decision regarding the Senate vacancy in Illinois.  According to the court, the Seventeenth Amendment requires that “every time that a vacancy happens in the state’s senate delegation, the state must hold an election in which the people elect a permanent replacement to fill the vacant seat [and] the executive officer of the state must issue a writ of election that includes a date for such an election to take place.”  Under West Virginia law, however, neither of these requirements will be met whenever the vacancy occurs less than two years and six months prior to the end of the original term. 

            This issue may not directly arise in the present situation.  As of today, there are two years, six months and five days of Byrd’s unexpired term remaining.  Thus, it would seem that under West Virginia law a special election is required. 

            It is possible, however, that the Governor could take a contrary position.  First, the Governor might take the position that the vacancy does not “occur” until he receives formal notice from the Senate.  Were the Senate to fail to give notice of the vacancy this week, the Governor might argue that the unexpired term is less than that required to trigger a special election.  Second, the Governor might argue that the vacancy continues to occur so long as the office remains vacant, so that the length of the unexpired term is measured by whenever the temporary appointment is made.  Third, (closely related to but somewhat stronger than the second), the Governor could argue that the “unexpired term” referred to in the statute is measured by the temporary appointment, not by the vacancy.  Under either the second or third points, no special election would be required if the Governor fails to fill the vacancy until after July 3 (this Saturday). 

            I don’t know what West Virginia law may say about these points, but there are two good reasons for regarding them with skepticism.  First, it seems unlikely that the legislature intended to leave it up to the Governor’s discretion when the clock starts on the unexpired term.  (It is more likely that the legislature would have started the clock upon official notice from the Senate, but in that case one would expect that it would have said so explicitly).  This is particularly so since the legislature did not require the Governor to fill the vacancy within a specific period of time, raising the possibility that the Governor could wait weeks or even months to fill a vacancy in order to avoid a special election. 

            Second, and more importantly, any interpretation that prevents a special election from occurring at all would raise the serious constitutional questions previously mentioned.  Such an interpretation would fly in the face of “the Seventeenth Amendment’s primary objective of guaranteeing that senators are selected by the people of the states in popular elections,” as the Seventh Circuit put it.  Thus, the doctrine of constitutional avoidance strongly counsels in favor of an interpretation allowing a special election to take place. 

            For these reasons I conclude that a special election to fill Byrd’s seat is likely required.  I will turn to the question of when such a special election should occur in another post.

The Tillmans on Shall and May

            Nora and Seth Tillman have published this fragment on the constitutional meaning of  “shall” and “may.”   They contend that in 18th Century America the word “shall” was used more often in a non-obligatory sense, ie, to indicate futurity as we would use the word “will,” than it would be today.  This may be important in construing certain constitutional provisions where the use of “shall” is arguably non-mandatory.   

For example, the Appointments Clause provides that the President “shall” nominate and appoint Ambassadors, Ministers and Consuls, Supreme Court Justices, and all other officers of the United States.  The word “shall” in this sentence could be  mandatory (must), directory (should) or permissive (may).  The Tillmans argue that we should not be too quick to assume that the word was used in the mandatory sense, as 18th century usage would be more consistent than current usage with the directory or permissive senses (though it seems to me unlikely that the framers would have used “shall” rather than “may” had they intended the Clause to be permissive).

Illinois’s Unconstitutional Procedure for Filling the Obama Vacancy

An interesting Seventh Circuit opinion earlier this month considers the constitutionality of Illinois’s procedure for filling the Senate seat vacated by Barack Obama after his presidential election.  (hat tip, Election Law Blog).  Among other things, the court confirms my view that the term of Senator Burris (who was appointed by then-Governor Blagojevich as a temporary replacement pursuant to the Seventeenth Amendment) must end at the next general election in November 2010, not in January 2011 as claimed by Illinois Attorney General Lisa Madigan.

More importantly, the court indicates that Illinois is violating both the Constitution and state law by failing to schedule a special election to fill the Obama vacancy. Judge Wood’s opinion carefully examines the text, purpose and legislative history of the Seventeenth Amendment, as well as its relationship to other constitutional provisions, such as the House Vacancies Clause and the Elections Clause.

The relevant language of the Seventeenth Amendment provides: 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.”

Analyzing this provision, the court concludes:

1.      The first part of the provision (the language preceding “Provided”) establishes a mandatory duty on the part of the state executive to issue a writ of election when a Senate seat becomes vacant.

2.      The second part of the provision (the language following “Provided”) is an elaboration of, not a freestanding alternative to, the first part.  Thus, the executive is required to issue a writ of election whether or not he appoints a temporary replacement.

3.      The phrase “as the legislature may direct” modifies the immediately preceding term “election.”  This phrase merely affirms that the Seventeenth Amendment was not intended to change the Elections Clause of the original Constitution, which provides that state legislatures shall prescribe the times, places and manner of holding congressional elections.

4.      Although the writ of election must contain the date of the election to fill the vacancy, “the state legislature may pass laws that establish a range of dates from which the state executive may choose, and might even limit that set to a single day.”

Illinois law clearly provides that a Senate vacancy must be filled by a special election on the date of the next general congressional election.  However, neither Governor Blagojevich nor his successor issued a writ of election with respect to the Obama vacancy.  Moreover, according to the evidence submitted to the Seventh Circuit, Illinois appears to have taken no steps to provide for a special election to fill the Obama vacancy.  To the contrary, the court notes that Attorney General Madigan has taken the position that Senator Burris’s term will end at the expiration of this Congress in January 2011, thus confirming that Illinois does not intend to hold a special election to fill the vacancy.

Judge Woods finds a strong likelihood that the plaintiffs will prevail on the merits of their claims that Illinois has violated the Seventeenth Amendment by failing (a) to issue a writ of election and (b) to provide for any special election to fill the Obama vacancy prior to the expiration of this Congress (at which point Obama’s original term will expire of its own accord).  Indeed, it is not clear whether Illinois has even offered a legal justification or explanation for its actions (or inactions) with regard to the Obama vacancy.

The case is now be remanded to the district court for consideration of how Illinois can arrange for a special election at this late date. One final note—the Seventh Circuit did not reach the question of whether Illinois’s law itself violates the Seventeenth Amendment by providing for an unreasonably long period (up to two years or so) for a “temporary” Senate appointment to last.  While the court does not directly address this issue, my sense is that it at least considered this a serious question, which would have potential implications not only for Illinois, but for other states which have similar provisions for filling Senate vacancies.

Roll Call on OCE Referral

          Today Roll Call Columnist Simon Davidson discusses the risks that a private party faces in turning over information to the Office of Congressional Ethics.  He mentions my post last week questioning whether OCE has the authority to refer evidence to the Justice Department as it did with regard to the PMA investigation.   

            Roll Call has also editorialized about this issue, noting that OCE’s decision to turn over evidence to the Justice Department could chill cooperation by future witnesses needed in its investigations.  The editorial warns that this action could play into the hands of “OCE’s enemies,” who are looking for reasons to eliminate the office.

Kagan’s White House Records and the Presidential Records Act

In preparation for the confirmation hearings for Supreme Court nominee Elena Kagan, the Senate Judiciary Committee has requested that the National Archivist produce records of Kagan’s service in the Clinton White House, where she served first as Associate White House Counsel and then as Deputy Assistant to the President for Domestic Policy.   It appears that the documents related to her domestic policy position have been largely, if not entirely, released, but those relating to her service as counsel are still being reviewed.

These records are subject to the Presidential Records Act, 44 U.S.C. § 2201, et seq., which provides that the records of an outgoing administration belong to the public and are to be transferred to the National Archives for preservation and processing.  After a specified period (up to 12 years depending on the type of record), the public may seek access to these records under the Freedom of Information Act.

Congressional committees are not subject to either the PRA’s time restrictions or to FOIA’s limitations on public access.  Nevertheless, the PRA recognizes that congressional requests for presidential records may be subject to claims of privilege.  44 U.S.C. § 2205(2).

In 2001, President Bush issued an executive order on presidential records which was widely criticized for, among other things, broadly interpreting the rights of both the incumbent and former President to prevent the disclosure of presidential records to Congress.  Bush’s order (1) allowed the former President a 21-day period to review records requested by a congressional committee and decide whether to assert a privilege, (2) gave the incumbent President a sequential 21-day period to make his own decision with regard to privilege, (3) permitted either to extend these periods indefinitely for “burdensome” requests, and (4) prohibited the National Archivist from disclosing the records unless both the former and incumbent Presidents agreed to do so.

President Obama, in one of his first official actions, revoked the Bush executive order and replaced it with a new executive order on presidential records.  The Obama order more closely tracks the National Archives regulations than did the Bush order.  Under the revised procedure, the Archivist is responsible for initially determining if records will be disclosed, whether in response to a congressional request or otherwise; the Archivist then provides the former and incumbent Presidents with a notice period (normally 30 days) during which either may invoke executive privilege.  However, the Archivist is only bound to follow the privilege decision of the current President; he may choose, unless otherwise instructed by the current President or his designee, not to honor a privilege invocation by the former President.  He must, however, provide the former President notice of this decision, thereby permitting the former President to seek judicial relief.

White House Counsel Bob Bauer has informed Senator Jeff Sessions, Ranking Member on Senate Judiciary, that “President Obama does not intend to assert executive privilege over any of the documents requested by the Committee.”  However, Bauer notes that the documents are being reviewed by a representative of President Clinton, and he leaves open the possibility that Clinton may assert a privilege with respect to some of the documents.  In that event, Bauer states that the administration would first try to reach a “mutually satisfactory accommodation” with the Committee and Clinton.  He doesn’t say what would happen if an accommodation cannot be reached, but, under the regulations and executive order, the Obama administration could decide to accept or reject Clinton’s claim, or it could leave the decision up to the Archivist.

If Clinton decides to invoke executive privilege for documents related to Kagan’s service as White House counsel, it will likely raise a number of unsettled issues.  Bush’s executive order, for example, claimed that executive privilege covers “legal advice or legal work,” but many in Congress hotly disputed this claim, arguing that common-law privileges such as attorney-client privilege are not part of the constitutionally-based executive privilege.  Moreover, as a former President, Clinton’s ability to claim privilege is subject to further uncertainty as the executive privilege tends to erode over time.