From Election Law Blog, news that Marty Lederman is leaving OLC to return to teaching at Georgetown Hmmm.
Still More on the Byrd Vacancy
State officials in
In light of this disagreement, the Governor has proposed legislation that would “clarify” state law with regard to vacancies. Specifically, with respect to Senate vacancies, the proposed legislation would require the Governor to proclaim a special election whenever the unexpired term equals or exceeds two years and six months. If the vacancy occurs one hundred and twenty days or more before the next general election, the Governor would be required to set the special election on the general election date. If the vacancy occurs less than one hundred and twenty days before the special election, the Governor can set any special election date, as long as it is not within sixty days, and no more than one year from, the occurrence of the vacancy. In addition, the Governor is required to set a special primary election, which may not be within sixty days of the special election.
In the meantime, the Governor has named a temporary appointee for the vacant office. (Although I have not seen the formal certificate of appointment, the Governor presumably has executed or will execute such a certificate by next week, when the appointee’s credentials are apparently to be presented to the Senate).
These machinations raise a couple of interesting questions. First, can the Governor properly appoint a temporary Senator before issuing a writ of election setting the date of the special election? The language of the Seventeenth Amendment arguably implies that the writ of election comes first, a reading suggested by the following language from the Seventh Circuit’s discussion of the Obama vacancy in Illinois: “The principal clause [of the Seventeenth Amendment] describes a chain of events: when a vacancy happens, the state executive issues a writ of election, which calls for an election in which the people will fill the vacancy. The proviso qualifies this chain of events by permitting an appointee to intercede temporarily between the start of the vacancy and the election that permanently fills that vacancy.”
Second, if the Governor makes an appointment in accordance with state law, can the legislature subsequently change the date on which the special election is to occur? Extremely alert readers will recall that this issue arose in connection with the Obama vacancy. After Governor Blajojevich appointed Roland Burris to fill the vacancy, the Illinois legislature discussed changing the law to require a special election to be held earlier than the date provided by existing law. Burris argued that such a change would be unconstitutional and threatened to fight it in court. As I discussed at the time, a post-appointment change in the election date may be unprecedented and presents serious constitutional issues.
If the West Virginia legislature were to adopt the law proposed by the Governor, the Governor would be required to set a special primary election at the very beginning of September, and the special election would be held on the general election date in November. This is on the assumption that the Byrd vacancy occurred on June 28 (the date of his death), which would be more than one hundred and twenty days before the general election (127 by my count). Of course, it is arguable that this result is the same as was required under pre-existing law, in which case the second constitutional issue would not arise.
West Virginia Attorney General Disagrees with Secretary of State on Byrd Vacancy
The West Virginia Attorney General has issued this opinion rejecting the Secretary of State’s legal conclusion that a special election to fill the Byrd vacancy cannot be held until November 2012. The Attorney General’s reasoning is essentially the same as what I suggested in these prior posts (see here and here), namely that the West Virginia legislature’s evident intent to require a special election when to fill a vacancy with an unexpired term of more than two years and six months, combined with the Seventeenth Amendment’s purpose of ensuring popular election of Senators, requires reading the ambiguous provisions of West Virginia law so as to allow the calling of a special election as soon as possible. The Attorney General also distinguishes the Robb v. Caperton case on the grounds that it dealt solely with state judicial offices.
Recess Games
The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services. The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday.
Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination. The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered.”
The Recess Appointments Clause (
A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year. The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods. In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess. A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment. Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).
If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional. I will leave consideration of the merits of these arguments for another day. For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center. Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted. Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals.
In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function. For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent. Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.”
Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel. Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?
The Governor Weighs in on the Byrd Vacancy
The Governor of West Virginia, apparently not entirely satisfied with the Secretary of State’s determination that the Byrd vacancy cannot be filled by a special election until November 2012, has asked the Attorney General to opine on the question of when such an election is to take place. The Governor’s letter notes that “[t]he issue of when such an election may lawfully occur raises questions of law that, when examined by persons of sound legal training and experience, may be answered in a way that reasonably calls into question the constitutionality or legislative intent of the law.”
I am not sure exactly what that means, but I interpret it as saying that the Secretary of State’s legal determination, while not unreasonable, is arguably in conflict with the intent of the West Virginia legislature, as well as with the requirements of the U.S. and West Virginia Constitutions. If that is what he means, I agree with the Governor.
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
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.
Is a Special Election Required to Fill the Byrd Vacancy?
Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in
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
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
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
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
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
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.