Is Senator McSally Unconstitutional?

An interesting Seventeenth Amendment issue is raised by this Atlantic article by Professor Garrett Epps.  Epps contends that the Arizona law which permitted the governor to appoint Martha McSally to fill the vacant senate seat arising from the death of Senator John McCain is unconstitutional. A new lawsuit filed in Arizona federal court, Tedards v. Ducey, seeks to force the governor to call an immediate special election to fill the vacancy.

To understand the issue, we should begin with the text of the Seventeenth Amendment:

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.

This seemingly straightforward language turns out to be more complicated on closer inspection. For example, what happens if a vacancy arises so close to the end of a senate term it is impossible or impractical to call a special election to fill the remainder of the term? A literal reading of the constitutional language might suggest that in such instances the governor is disabled from making an appointment at all because such an appointment would not be a “temporary” one lasting only until the people fill the vacancy by election.

Perhaps not surprisingly, the constitutional text has not been so interpreted, presumably because it makes little or no sense to deprive the governor of the authority to fill a vacancy in such circumstances and because to do so would contravene the important goal of ensuring that each state is fully represented in the Senate. See U.S. const., art. v (“no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”). Indeed, there have been at least 27 instances since the ratification of the Seventeenth Amendment where the governor’s appointee served out the balance of the senate term rather than being replaced at some point by a senator popularly elected to fill the vacancy. See Judge v. Quinn, 612 F.3d 537, 556 (7th Cir. 2010) (“Judge I“). This practice is at least some evidence that the Constitution does not require a special election in all circumstances when a senate vacancy is filled by executive appointment.

What about vacancies at the opposite extreme, namely those that arise relatively early in a senate term? The Seventeenth Amendment does not specify when the special election to fill a vacancy must take place. Thus, if a state were to provide that the special election to fill the vacancy take place at the time of the general election immediately preceding the expiration of the senate term, the election could theoretically take place more than five years after the vacancy arose. Although such a state law would not violate the literal terms of the Seventeenth Amendment, it arguably conflicts with the spirit of the amendment’s “primary objective of guaranteeing that senators are selected by the people of the states in popular elections.” Judge I, 612 F.3d at 555.

Continue reading “Is Senator McSally Unconstitutional?”

North Carolina Ninth Congressional District: Status Unchanged

The updates on the North Carolina 9thcongressional district consist largely of things that have not happened. First, not surprisingly, no one has been sworn in to represent the district in the new Congress. Second, no one has been issued a certificate of election, although Republican candidate Mark Harris has filed suit asking a court to order the state elections board to issue him such a certificate. Third, while some investigation into the election by state election authorities continues, formal proceedings are on hold until a new state board of elections is constituted on January 31. Fourth, and somewhat more surprisingly, the House has not taken any formal action to assert jurisdiction or commence an investigation regarding the election, although House Democrats have been having discussions about possible next steps. A good summary of these nondevelopments can be found here.

It appears House leaders are inclined to wait on the outcome of the state election proceedings, unless a court should order Harris certified (in which case the House would refuse to seat Harris and commence its own investigation). They seem to be hoping that the state board of elections will order a new election, thereby obviating the need for the House to take any action.

The problem with this passive approach is that it could take weeks or months for the new state election board to act. Moreover, as suggested in my last post, there are questions about the interaction of the House’s authority to declare a vacancy, the governor’s authority to call a special election in the event of a vacancy, and the state board’s authority to order new elections under state law. These questions and uncertainties could further delay congressional representation for the 9th district.

In the meantime, the House seems to recognize that there is no vacancy in the North Carolina 9th congressional district. Up until yesterday the Clerk’s homepage showed the tally of members in the 116th Congress as including one vacancy, but that has now been changed to zero vacancies. The Clerk’s vacancies page confirms “there are no vacancies for the 1st Session of the 116th Congress.”

What this means for the Clerk’s authority over the empty congressional office remains to be seen. As of Tuesday afternoon, no one seemed to be in 132 Cannon (see photo of the uncollected mail). Unless the House takes further steps to empower the Clerk or someone else to manage the office or hire staff, the people of the district will have to look to their senators if they need constituent service.



Is there a Vacancy in North Carolina?

The vote count in North Carolina’s ninth congressional district resulted in the Republican candidate, Mark Harris, leading his Democratic opponent by a narrow margin (905 votes). The North Carolina election authorities, however, have declined to certify his victory as they investigate allegations that the results were tainted by fraud.

This means that the House, which is constitutionally the judge of the elections and returns of its members (Article I, section 5, clause 1), has a decision to make when it meets tomorrow on the first day of the 116th Congress. Will it seat a member to represent the ninth congressional district of North Carolina? According to the incoming House Majority Leader, Steny Hoyer, the answer is no. Last Friday, Hoyer told the Charlotte Observer that Harris would not be seated on January 3 because “[i]n this instance, the integrity of our democratic process outweighs concerns about the seat being vacant at the start of the new Congress.” Hoyer’s position was visually illustrated on Monday by the nameplate on the door of a congressional office at 132 Cannon (see photo below). Rather than bearing the name of the member expected to represent the district, it reads “Office of the 9th Congressional District of North Carolina,” which is how the House designates an office managed by the Clerk under House Rule II(2)(h)(i) in the event that a vacancy occurs.

There is, however, no vacancy in the North Carolina 9th district yet, and there will not be one tomorrow unless the House votes to declare one. The House certainly has the power to do so, but it seems unlikely that it will. The question of whether the seat is vacant is not a relatively straightforward factual question (like whether a member has died or is in a coma from which recovery is unlikely), but a legal judgment that can only be made after reviewing the evidence and determining that (1) fraud occurred and (2) either the candidate was complicit or that the fraud was significant enough to have affected the outcome. This is particularly so given House precedent that “[n]othing short of an impossibility of ascertaining for whom the majority of votes were given ought to vacate an election, especially if by such decision the people must . . . necessarily go unrepresented for a long period of time.” CRS Report for Congress, Procedures for Contested Election Cases in the House of Representatives 16-17 (Oct. 18, 2016) (quoting McCloskey and McIntyre, H. Rep. 99-58, at 44 (1985)).

So what then should the House do?  It could choose to seat Harris without prejudice to its ultimate determination of the election outcome. Normally this is what the House does when one candidate is certified as the winner but there appears to be a serious challenge to the certified election results. Even then, the House sometimes declines to seat anyone. I am not aware of any precedent for what the House should do when the state authorities have not certified anyone as the winner, but it seems logical that no one would be seated in that situation. On the other hand, that intensifies the need for a speedy resolution of the matter.

The House could also choose to wait upon the outcome of the state election investigation. There are both pragmatic and constitutional considerations against such an approach, however. The former include the fact that it would significantly extend the period in which the people of the district would be unrepresented, particularly because the process in North Carolina appears to be bogged down with its own problems. The latter include the question whether it is proper for state election authorities or courts to make the types of difficult factual and legal decisions inherent in a fraud case (as opposed to the administrative nature of a recount). See Kristen R. Lisk, The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. Rev. 1213, 1217-18 (2008) (arguing for “exclusive congressional jurisdiction over all election contests seeking more than administrative recounts, because these contests involve substantive claims that require decision makers to engage directly with election results and make difficult policy decisions.”).

There is a separate and even more serious question whether state officials have the authority to order a new election on the grounds that the original election was tainted by fraud. A new election is fundamentally different than recounts or other post-election remedies. Under federal law, North Carolina was required to conduct its congressional elections for the 116th Congress on the first Monday in November 2018. See 2 U.S.C. 7. If a vacancy then happens in North Carolina’s representation, the governor must then issue a writ of election to fill the vacancy, but I am not aware of any authority for the proposition that the governor or other state officials can declare a vacancy because they believe the initial election to be defective in some way.

The closest case I have found (in an admittedly non-exhaustive search) is an 1826 Pennsylvania congressional election which resulted in a tie vote. See I Hinds Precedents 555. In that case “[i]t appearing that the people had failed to make a choice, the executive seems to have considered the case in the light of a vacancy, but not to an extent sufficient to warrant him in directing a new election until both [candidates] informed him in writing that they relinquished all claims to the seat in virtue of the election of 1826.” In light of this waiver, the House committee accepted the results of the second election and declined to consider claims arising from the first. This precedent would therefore be of little help in establishing a governor’s authority to declare or recognize a vacancy in the circumstances presented here. There are also a couple of even earlier cases brought to my attention by Professor Derek Muller in which a second election was held to fill a House seat (Lyon v. Smith, 1796 and Turner v. Baylies, 1809), but it is not clear that these involved a purported vacancy as opposed to merely a carrying out of state election procedures for the original election. Prior to the enactment of a uniform federal date for congressional elections, states were free to hold a second election at a later time if the initial election was deemed inconclusive.

It could be argued that the North Carolina governor has the authority to call for a special election, and that this authority does not interfere with the House’s constitutional prerogatives because the House is always free to disregard the results of that special election (if it believes there was no vacancy in the first place). But this would not only be an extraordinarily inefficient way of proceeding, but it would establish a potentially dangerous precedent which would allow governors to disregard the results of any election if they believed there was some deficiency in it. As a matter of prudence, if not constitutional necessity, therefore, no special election should be called in North Carolina unless the House itself first declares a vacancy.

The House could still wait on the results of the North Carolina proceedings before making a decision as to whether a vacancy exists. This, however, is likely to take a long time. Instead, the House should immediately assert jurisdiction over the North Carolina election matter and direct the Committee on House Administration (or a task force thereof) to gather the relevant facts and determine as expeditiously as possible whether a vacancy should be declared.

Finally, there is an interesting question regarding the Clerk’s authority over the office located at 132 Cannon H.O.B. As already noted, House Rules provide that “[t]he Clerk shall supervise the staff and manage the office of a Member, Delegate, or Resident Commissioner who has died, resigned, or been expelled until a successor is elected.” This authority, however, is inapplicable here. The same rule provides “[t]he Clerk shall perform similar duties in the event that a vacancy is declared by the House in any congressional district because of the incapacity of the person representing such district or other reason.” Until the House declares a vacancy, however, this authority also is inapplicable. Therefore, it would seem the House would be well advised to provide specific authority to the Clerk to manage this office in whatever resolution it crafts to deal with this unusual situation.



Resources on State Recount and Contested Election Laws

[Correction: Professor Tokaji informs me that the page I linked to is no longer accessible from Moritz’s main page and has not been kept updated since 2004 or so. My mistake. If anyone knows of more recent compilations, let me know and I will add them to this post]. 

What’s that you say? Where can I find a 12-year old CRS report listing state recount and contested election statutes? Amazingly enough, I have one right here.

The truth is I am cleaning some files, and the hard copy of this report is going in the recycle bin. I couldn’t find the report or a more recent version of it online and, despite its age, it seems worth preserving. A quick google search reveals a couple of other useful sources (here is a summary of state recount laws that is kept up to date [see correction] by Professor Dan Tokaji at Moritz College of Law and here is a 1990 report on state procedures for resolving contested federal elections from the EAC website).  I add the CRS report for whatever additional value it can provide.

Could New York Legally Add Another Day of Voting after Tomorrow?

There has been much discussion over the past week or so regarding the question of whether a presidential election can be postponed, either generally or in particular states, in the event of a natural disaster such as Hurricane Sandy. Professor Steve Huefner (a veteran of the Senate Legal Counsel’s office) has an excellent summary of the applicable constitutional and statutory provisions. Professor Rick Hasen weighs in here, arguing we need federal legislation to address this issue.

I think it would be widely, if not universally, agreed that Congress has the constitutional authority to provide that a presidential election may be postponed under particular circumstances, or that additional time may be added to permit completion of the voting process after the legally specified day of election. The Constitution provides that Congress “may determine the Time of chusing the Electors and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.” It seems fairly clear that this provision only requires uniformity with respect to the day on which presidential electors cast their votes; Congress is not prohibited from authorizing states to choose their presidential electors at different times. Thus, Congress could, if it wished, provide that the time of election in particular states or jurisdictions could be changed or extended based on the occurrence of a disaster, natural or otherwise. See CRS Report, Postponements and Rescheduling of Federal Elections 4 (2004) (Congress could “pass legislation regarding dates, and emergency postponements and/or rescheduling times for elections to federal offices”).

Current federal law, however, has no explicit provisions for postponing a presidential election under any circumstances, nor does it delegate to the President or the executive branch any authority to postpone or extend any federal election due to emergency or any other reason. (Huefner notes that, despite suggestions that it do so, Congress has adopted “no federal contingencies to deal with disasters or emergencies”).

Moreover, there is no constitutional text or historical precedent to suggest that the President has inherent authority to alter the timetable of any election, state or federal. Thus, it seems clear, as this Heritage blog post argues, that there is no federal executive authority to alter the election schedule in response to a natural disaster or other emergency.

It is less clear whether states have the authority to postpone presidential elections in emergency situations. In the absence of federal legislation, states would certainly have this authority because the appointment of its presidential electors is a state responsibility, to be accomplished “in such Manner as the Legislature thereof may direct.” See J. Goldfeder, Could Terrorists Derail a Presidential Election?,  32 Fordham Urb. L.J. 101, 123 (2004) (“The United States Constitution and federal statutes grant the several states dominant decision-making authority in presidential elections.”).

However, federal law mandates that “[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” 3 USC §1. This exercise of the Congress’s power to “determine the Time of Chusing the Electors” constrains the discretion the states could otherwise exercise with regard to scheduling of elections.

The next section of the U.S. Code, 3 U.S.C. §2, seems to give the states some wriggle room: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” The requirement of appointing electors on the specified Tuesday in November is thus not absolute, but the scope of the exception is far from clear.

First, does this exception require that the state actually hold an election on the day prescribed by law? Read literally, it appears to, and thus would seem to preclude the state from simply postponing the entirety of the election. In itself, though, this might not be much of a limitation because the state could simply hold a pro forma election (say in which one polling station was open) on the prescribed day.

Perhaps a more difficult barrier to overcome is the requirement that the election “fail[] to make a choice on the day prescribed by law.” What does this language mean? I was under the impression that this provision was directed primarily at the situation where state law required a majority vote for an election, and no candidate (or slate of electors) received a majority vote on election day. This commentator, however, says “[t]he historical record indicates that Congress thought this statutory language included cases where floods or inclement weather prevented ‘any considerable number’ of voters from reaching the polls and that, in such cases, Congress wanted to confirm the power of the state’s ‘legislature to authorize the continuance of the elections’ past the congressionally prescribed election day. This legislative history indicates that an election might ‘fail to make a choice’ even though there had been an election with a certifiable result, at least when that result was distorted by flooding or bad weather.”

I must say that if Congress intended this provision to permit states to extend an election when “any considerable number” of voters are prevented from reaching the polls, it could have chosen better language to express this intent. Nevertheless, it seems plausible that the statute would be construed broadly in such a way as to advance two federal objectives reflected in the overall statutory scheme; (1) to defer to state rules and procedures regarding the appointment of presidential electors and (2) to ensure that each state is able to cast its constitutionally authorized electoral votes on the day prescribed by federal law (i.e., the first Monday after the second Wednesday in December, which this year will be December 17).

Which brings us to New York Code 3-108, which provides:

A county board of elections, or the state board of elections with respect to an election conducted in a district in the jurisdiction of more than one county board of elections, may determine that, as the direct consequence of a fire, earthquake, tornado, explosion, power failure, act of sabotage, enemy attack or other disaster, less than twenty-five per centum of the registered voters of any city, town or village, or if the city of New York, or any county therein, actually voted in any general election. Such a determination by a county board of elections shall be subject to approval by the state board of elections. If the state board of elections makes such a determination, it shall notify the board of elections having jurisdiction in that county that an additional day of election shall be held. . . .

Note that this provision has some deficiencies from the point of view of its validity under 3 USC §2. The New York statute does not say that the failure of at least twenty-five percent of voters in a particular jurisdiction to vote, as the result of a disaster, prevents the state from making a choice on election day. Presumably, the provision applies even if there are not enough affected voters to change the outcome on election day.

It may be argued that the New York legislature has implicitly determined that the state has failed to make a choice under these circumstances. But this points up another issue- if the legislature can determine that an election can be extended if an insufficient percentage of registered voters actually vote, what is there to limit this to an emergency situation? In theory, a state could extend its voting period for as many days as it took for a specified percentage of registered voters to vote (so long as it finished by the time the presidential electors are required to vote), whether or not there was a disaster. This could substantially undermine the federal requirement of a uniform day of election.

If New York provides an additional day of voting as a result of Hurricane Sandy, it is unlikely to have any effect on the choice of New York’s electors, or on the ultimate selection of the president. But it will no doubt give rise to some interesting legal debates.

Could Biden Vote Under the 12th Amendment?

In a previous post, we briefly discussed the question of whether the Vice-President could vote in the Senate in the event of an electoral college tie followed by a tie vote in the Senate to elect his successor under the 12th Amendment. Over at Balkinization, Professor Gerard Magliocca asks the same question.

My view, which I sketched out more in comments to Magliocca’s post, is that the 12th amendment does not permit the Vice-President to vote for three reasons. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number.” The 12th amendment says that, if no one receives an electoral college majority for Vice-President, “the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”  The Vice-President is not a Senator and therefore not part of the “whole number;” thus, his vote would seem irrelevant to obtaining the necessary majority.

Second, to the extent that the 12th amendment is ambiguous on this point, there are strong reasons not to interpret it as authorizing the VP to vote.  At the time the 12th amendment was adopted, it was not yet established that the VP could vote on matters beyond ordinary legislation. Moreover, it seems unlikely that the framers of the 12th amendment would have intended the VP to vote in an election in which he would so often be an interested party (just as members, at least in the House, are not supposed to vote on matters relating to their own seats). Thus, the 12th amendment’s silence should not be taken as an implicit authorization for the VP to vote.

Third, Article I prohibits the Vice-President from voting unless the Senate is “equally divided.” Thus, if one Senator did not vote, resulting in a 50-49 vote, the VP could not vote, yet there would not be the necessary majority to make a choice.

I think these arguments are pretty strong. (This blog, although written by a non-lawyer, makes a similar case). It does not seem Professors Magliocca or Sandy Levinson are persuaded, but Professor Michael Ramsey is.

If others in the law professoriate weigh in, let me know in the comments.

Are You Ready for the Romney-Biden Administration?

The Real Clear Politics Electoral College Map currently has the Obama/Biden ticket with 210 electoral votes and the Romney/Ryan ticket with 181. There are 12 “toss up” states with 156 electoral votes. If the toss up states are given to the slate to which they are currently leaning, Obama/Biden has 294 electoral votes and Romney/Ryan 244.

However, if just three of the closest toss up states (Virginia, Iowa and Nevada) were to switch to the Romney/Ryan camp, it would result in a deadlocked electoral college, with each ticket having 269 electoral votes.

Supposing that were to actually occur, what would happen? Under the Twelfth Amendment, if no person receives a majority of the electoral vote for President, “then from the persons having received the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” Presumably that list would consist only of President Obama and Governor Romney, although note that any one elector could expand the list by voting for someone else.

The choice of the President would be made by the 113th Congress so we do not know what the exact partisan breakdown of the newly elected House will be. However, the voting for the presidency would be by state, not by individual member, and, as this CNN article suggests, it is highly likely that the Republicans will control a majority of the state delegations, even if the Democrats win back control of the House. Thus, it seems that Governor Romney would be the heavy favorite.

If no person receives a majority of the electoral vote for Vice-President, the Twelfth Amendment provides that “then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.” We do not know who will control the Senate in the next Congress, although the Democrats appear to be the favorites at this point. Thus, the odds suggest that Vice-President Biden would be elected by the Senate.

But what happens if there is a 50-50 tie in the Senate? Could Vice-President Biden vote to break the tie in his own favor? This article says yes, but I am not so sure. One could argue, it seems to me, that the “majority of the whole number” refers to the whole number of Senators, and that the Vice-President’s vote cannot create a majority of that number. There would also be, I imagine, objections raised to the Vice-President voting in his own election. So we can consider that an open issue for the moment.


Update: Writing in the Washington Examiner, Philip Klein also suggests that Biden could cast a tie-breaking vote for himself. However, the more I think about this, the more I tend to think it is wrong. Suppose 50 Democratic Senators vote for Biden, but one or more Republican Senators did not vote, so that Ryan receives 49 or fewer votes. Biden would not be able to vote because the Senate would not be “equally divided,” but no one would be elected because the winner must receive the votes of a majority of the whole number (ie, 51).

Note the additional complication that could occur if a Senate seat were vacant as of January 3, 2013 (because, say, the election was contested and the state had not yet certified a winner). In that case there would be a question whether the “whole number” referred to by the 12th Amendment is 100 or only the total number of Senators seated and sworn (i.e., 99).


Can Joe Miller Win?

To recap briefly, Joe Miller successfully challenged incumbent Senator Lisa Murkowski in the 2010 Republican primary for a U.S. Senate seat from Alaska.  Murkowski then launched a write-in campaign for the general election, and it appears that there were many more write-ins than votes cast for Miller (or for the Democratic nominee, who has conceded).  Alaska is now going through the process of determining for whom the write-ins were cast, though it is presumed that the overwhelming majority were intended to be for Murkowski. 

            For present purposes, we will assume that the number of write-in votes cast for “Lisa Murkowski,” or some reasonable variant thereof, will clearly exceed the number of votes cast for Miller.  Miller contends, however, that the state can legally count only those ballots that correctly reflect the spelling of Murkowski’s name.  He has brought a civil suit seeking to enjoin the state from counting misspelled ballots.   

            Miller may be correct about Alaska law, and it is possible (though unlikely) that he will be able to get enough write-in ballots thrown out so as to be certified the winner of the election.  That, however, is not the end of the matter.  Murkowski will still have the option (which she would almost certainly exercise) to contest Miller’s election in the U.S. Senate.  And the odds are very good that she would prevail in such a contest. 

             To begin with, the Senate enjoys a good deal of flexibility in how it handles an election contest, having established no fixed or formal procedures as exist in the House.  As one commentator notes, “the relatively informal nature of the process results in contestants having wide discretion to bring a case and the Senate having a wide discretion as to how it will handle such a contest.” 

            Moreover, Murkowski has at least one closely analogous Senate precedent that she could cite in support of her challenge.  In a 1924 U.S. Senate race in Iowa between Daniel Steck and Smith Brookhart, Brookhart was certified as the winner by 755 votes.  Steck, however, contested the election on the grounds that Iowa had rejected so-called “arrow ballots,” in which voters had marked Steck’s name but had drawn in an arrow (mimicking a sample ballot they had received); this marking required the disqualification of the ballot under Iowa law.  The contest was referred to a Senate committee, which decided to count those “arrow ballots” which clearly indicated an intent to vote for Steck, notwithstanding the Iowa law.  Although Brookhart’s supporters objected that “no precedent existed for the Senate to overrule a state’s election law” in this fashion, Steck’s supporters argued that “Iowa voters’ preferences, when clearly conveyed on their ballots should be honored, lest their voting rights be denied.”  Ultimately, the Senate decided to count the arrow ballots and seat Steck. 

            Murkowski’s position would be further bolstered by the political realities.  The Democratic majority in the Senate has no incentive to seat Miller, and it would have every reason to take a Murkowski challenge seriously (thereby prolonging a Republican internal battle).  It is reasonable to assume that some Senate Republicans would also be sympathetic to Murkowski, a former colleague who has indicated she would continue to caucus with the Republicans.  Finally, most Senators are likely to be uncomfortable with disregarding the apparent will of the voters, regardless of the legal niceties. 

            In short, even if Miller prevails on his claims under Alaskan law and is certified the winner of the election, he is likely to lose the Senate seat in the long run.

Recall of U.S. Senators

           At the Volokh Conspiracy, Eugene Volokh has an interesting post about an effort in New Jersey to recall Senator Robert Menendez.  Apparently the New Jersey Constitution expressly allows recalls of federal legislators, but the N.J. Secretary of State is refusing to allow a petition for such a recall on the grounds that the U.S. Constitution does not permit them.  The question is now set for a hearing before a New Jersey state court. 

            As suggested by Professor Volokh, this CRS report, and a separate post by Todd Zwicki, it seems fairly clear that the Constitution, in contrast to the Articles of Confederation, did not authorize state legislatures to recall their state’s representatives, although the state legislatures did issue “instructions” to their Senators.  Nothing in the Seventeenth Amendment expressly authorizes such recalls, and it is hard to think of a reason to read the amendment as implicitly authorizing voters to recall their Senators.   

            Nevertheless, there are a couple of interesting questions presented by this case.  First, who should make the decision as to whether the recall is unconstitutional?  The Constitution makes each House the judge of the elections, qualifications and returns of its Members.  Therefore, it would be up to the Senate, at least in the first instance, to determine the effect of any recall vote by New Jersey.  One might argue, therefore, that the petition drive should be allowed to go forward, on the theory that it is not up to state officials or state courts to determine the effect of the vote. 

            The counterargument would be that state officials and state courts are bound by oath or affirmation to support the Constitution (under Article VI) and cannot authorize actions that violate it.  This is presumably true if holding the recall vote would itself violate the Constitution.  But Volokh suggests that an advisory recall vote (i.e., essentially a request by the voters that the Senator resign) would be constitutional.  Therefore, New Jersey could, and arguably should, allow the recall vote to go forward on the grounds that, assuming it is constitutionally ineffective as a mandatory recall, it is constitutionally valid as an advisory recall. 

            I don’t think that the constitutionality of a hypothetical advisory recall is quite the issue, though.  The key point is that holding the recall vote, even though it purports to be mandatory, doesn’t actually do anything.  It is only if the result of a successful recall vote is presented to the Senate that the constitutional question arises.  If the Senate judges that the recalled Senator is still entitled to his seat (as it almost certainly would), it cannot be said that the recall vote has violated the Constitution.  Put another way, the Constitution does not prohibit recall votes; it simply doesn’t give them any legal effect.  

            I am persuaded by this analysis that state officials are not constitutionally obligated to block the recall vote simply because they believe that it will have no constitutional effect.  But this doesn’t necessarily mean that they are obligated to let the vote go forward, either.  Ultimately, the question of whether the recall vote should go forward would seem to be one of state, not federal, law.

Can Senator-Elect Brown be Seated Immediately?

            It may be recalled that during the controversy over the appointment of then Senator-designate Burris, one of the points of contention was whether the Senate required a certificate of appointment signed by the Illinois Secretary of State in order to seat Burris.  Senators Reid and Durbin maintained that Senate rules required such a certificate before Burris could be seated.  The Illinois Supreme Court, however, was unimpressed by this contention, noting that “no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution.” 

            A somewhat analogous issue is now presented with regard to the Massachusetts special election.  The election has concluded and Senator Reid has stated that Scott Brown will be seated “as soon as the proper paperwork has been received.”  This suggests that Brown will not be seated until a certificate is issued, which apparently cannot occur for at least another 10 days under Massachusetts law. 

            It should be noted, however, that Senate precedent permits Senators-elect to be seated prior to the issuance of credentials under certain circumstances.  According to Riddick’s Senate Procedure, “in cases where no question was raised concerning the election of a Senator, the Senate by unanimous consent on various occasions has administered the oath of office to such Senators-elect, prior to the receipt of their credentials.”   In one of these cases the Senator-elect was seated “on the basis of an authenticated statement prepared by the Secretary of State of the said State showing that the Senator had received a majority of the votes cast for that office but since under State law the canvassing board could not meet until a subsequent date, a formal certificate of election could not be issued.” 

            This suggests that the Senate could, by unanimous consent, allow Senator-elect Brown to be seated immediately, given that there is no controversy over his election and his opponent has conceded.  It may be argued that this option is a matter of legislative grace and that Brown has no “right” to be seated immediately.  If, however, one assumes that the Senate intends to allow Paul Kirk to serve until his successor is sworn in (a decision which itself is questionable under Senate precedent), it would seem to be particularly problematic for the Senate to delay Brown’s seating without any apparent justification.