Following Senator Stevens’s conviction yesterday, the Anchorage Daily News has spotlighted an interesting issue that would arise in the event Stevens were to resign. Evidently the Alaska Legislature passed a law in 2004 which allowed the Governor to make a temporary appointment to fill a Senate vacancy pending a special election to fill the seat. However, later in 2004 the voters approved a ballot initiative which purports to take away the temporary appointment power.
Under the Seventeenth Amendment, “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 issue, then, is whether the power granted by the Seventeenth Amendment can be taken away from the state legislature by some other state authority, in this case the voters by ballot initiative.
I have not done exhaustive (or even tiring) research on the issue. It appears, though, that Supreme Court cases on state legislative action regarding the time, place and manner of federal elections would be relevant here. Although the Constitution provides that regulations on time, place and manner “shall be prescribed in each State by the Legislature thereof,” the Court has held that this does not pre-empt state constitutional provisions that limit a state legislature’s lawmaking authority, such as provisions that a billed passed by the legislature may be vetoed by the Governor, Smiley v. Holm, 285 U.S. 355 (1932), or may be negated by a referendum, Davis v. Hildebrant, 241 U.S. 565 (1916).
However, there is an important distinction between the