North Carolina Still Has a Problem

Yesterday the North Carolina election board unanimously voted to call a new election in the state’s ninth congressional district, an unexpected result that occurred after the Republican candidate, Mark Harris, basically imploded on the stand and ended up agreeing with his Democratic opponent that a new election was needed. As a practical matter, this might seem to moot my concerns about the legality of this process because, with both candidates and their respective political parties on board, it is difficult to imagine a challenge to a second election being seriously entertained.

Not so fast. It turns out that there is still a dispute about the process for conducting the new election. Under North Carolina law as of the time of the 2018 election, a new election called by the election board is supposed to be limited to the same candidates who were on the ballot in the original election (with some exceptions not relevant here).  See NC Gen. Stat. 163-182.13 (c).

However, in December 2018, after the state election board refused to certify the result in the ninth congressional district, the Republican-controlled North Carolina legislature passed a new law that requires the candidates in a  new congressional election ordered by the board to be selected in primaries. This law, the New York Times observed, “opens the door for Republicans to consider replacing Mark Harris, their candidate in the disputed race in the Ninth Congressional District.” Under the current circumstances, this door is one Republicans are happy to have.

However, the three sitting Democratic members of Congress from North Carolina protested the passage of the new law, contending that “changing the law after the election, to require a new primary, is likely unconstitutional.” Needless to say, the Democrats would be better off if Republicans were required to run Harris as their candidate. Therefore, although the election board apparently intends to follow the new law and require that primaries be held, there could well be a legal challenge to this process.

Assuming for the sake of argument that states have the power to provide for do-over elections under their general authority to regulate congressional elections (art. I, § 4, cl. 1), it is not at all obvious to me whether that power extends to changing the law after an election has already occurred. It is possible that a court would order a new election to take place under the old law, which would deprive other Republican candidates of the opportunity to run. It is also possible that a court would conclude (correctly, I tend to think) that North Carolina lacks the power to provide for a do-over election at all. In either case, there is likely to be a procedural mess, as well as continuing controversy regarding the fairness and legality of the process.

But there is a simple way to avoid this. The House can simply declare the seat vacant (an noncontroversial act now that both candidates agree the first election must be set aside). This will trigger NC Gen. Stat. 163A-721, which requires the governor to set times for both primaries and the general election. It is the same process being used to fill the vacant seat caused by the death of Congressman Walter Jones and, as far as I know, there is no legal objection that could be made to it.

So why not do that?


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?”

Will the New Jersey Special Senate Election Survive Judicial Review?

Update: the answer to this question is apparently yes, as the New Jersey Supreme Court has declined to hear the challenge.

A three-judge panel of the New Jersey Superior Court Appellate Division has issued this opinion rejecting a legal challenge to Governor Christie’s writ of election setting an October 16, 2013 date for the special election to fill the Senate seat that became vacant as the result of Senator Lautenberg’s death. The case, however, has been set for a fast track review by the New Jersey Supreme Court (hat tip: Rick Hasen), with briefs challenging the writ to be filed on Monday, June 17, and the Governor’s response due on Tuesday, June 18.

The appellate division opinion does not do a whole lot to clarify the meaning of the relevant New Jersey law, IMHO, but it does raise what appears to be another significant legal and practical problem with holding two elections in such a short period.

The court begins its analysis with the proposition that “[b]ecause Senator Lautenberg died on the day prior to the primary election, N.J.S.A. 19:27-6 governs.” Under this provision, the vacancy would be filled at the “second succeeding election” (i.e., in November 2014) unless the Governor calls a special election. The court states that “[w]ithout question, the Governor was authorized to call a special election in this circumstance, where the vacancy occurred one day prior to the primary.”

But what about N.J.S.A. 19:3-26, which appears to require that the vacancy be filled at the next general election (i.e., in November 2013) unless the vacancy occurred less than 70 days before that general election (which it did not)? The court does not attempt to reconcile this provision with 27-6 nor to explain how one would resolve the conflict between the two provisions if the Governor did not call a special election. It does state at one point that “[w]ithout a special election, this seat would be filled by an appointee for the remainder of the term.” That suggests that 27-6 would control (although, even then, the appointee would only serve until November 2014, not until the expiration of the term in January 2015). But the court offers no explanation as to why that would be the case.

The court also rejects the plaintiffs’ argument that 3-26 precludes the Governor from calling a special election. It evinces some sympathy for the Governor’s position that 3-26 permits the calling of a special election under any circumstances, not merely where the vacancy occurs less than 70 days before the general election. The Governor relied on the punctuation in 3-26, which (you may recall) provides:

If a vacancy shall happen in the representation of this State in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within 70 days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this State shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

According to the Governor, “the comma preceding the authorizing clause” (i.e., the comma immediately preceding the second “unless”) demonstrates “the Legislature’s intention to authorize a special election whether the vacancy occurs fewer or more than seventy days before the general election.” Maybe this is right, although it seems to me that the Legislature would have more clearly expressed this intention if it had used the word “or” instead of the comma, but I suppose this might have created an ambiguity as to which “unless” clause governs if both apply.

In any event, the court did not seem to be completely convinced by the Governor’s argument because it stressed that it was limiting its holding to the situation in which the Governor was already authorized to call a special election under 27-6: “In this circumstance, it would be wholly absurd to conclude that the Legislature intended to authorize a special election in N.J.S.A. 19:27-6 and preclude it in N.J.S.A. 19:3-26, even if the punctuation the Legislature chose did not support a contrary reading, as the punctuation used plainly does.” In other words, if Lautenberg had died the day after the primary election, instead of the day before, the court is not deciding whether Christie would have had the authority to call a special election under 3-26, although it seems to be leaning toward the conclusion that he would.

As for the timing of the special election, the court held that this was a matter within the Governor’s discretion. Although 27-6 tightly constricts the Governor’s discretion as to dates for the special primary and special elections once he issues the writ, there is no specific time set for issuing the writ. According to the court, the Legislature therefore must have intended the Governor to have a wide discretion in selecting the date of the special election:

Without question, the Legislature has authorized the Governor to select the date of the special elections, which can be accomplished by assigning the statutory dates backward from the date for a special general election that the Governor deems advisable before issuing the writ.  The Legislature could have, but did not, limit that discretion, and its breadth must have been as obvious to the Legislature at the time it was written as it is now. Because of the date of Senator Lautenberg’s death, this special election could have been scheduled for the same date as the general election.

The court seems to be saying that the Governor can indefinitely delay the issuance of the writ of election in order to set whatever date he wants for the special election. This seems to me to be a less than obvious conclusion. An equally if not more plausible inference from the legislature’s failure to specify a date for issuing the writ is that the legislature intended that it be issued either forthwith or within a reasonable time of the occurrence of the vacancy. In this case that might have allowed the Governor to set the special election on the same date as the general election. But the court’s assumption that the legislature intended for the Governor to have a broad discretion in choosing when to issue the writ seems to be in some tension with the very limited discretion it gave him once the writ issues.

Finally, the court declined to second guess the Governor’s decision to hold the special election on October 16, rather than on the date of this year’s general election, November 5. The issue of the cost of holding a separate election was a policy issue, the court sensibly concluded, that was not for judges to decide. However, the court did express a serious concern with the logistical difficulties involved in using the same voting machines in two statewide elections in such close proximity. It noted that the machines by law must be impounded for a 15 day period after the October 16 election, which would seem to make it extremely difficult to have them ready in time for their use in the November 5 general election. Although the court did not believe that the evidence provided by the plaintiffs warranted invalidating the writ, it left open the possibility of future challenges on this ground:

We view the potential for problems it may create in conducting the general election at this point as a matter committed to the Governor and relevant to his determination as to whether the date of this special election, dictated by his writ, is “advisable.” In our view, there is no question of statutory or constitutional violation that is ripe, and, as the State’s Chief Executive Officer, the Governor’s policy decision and assessment of the feasibility of accomplishing it is not reviewable.

(emphasis added).

This issue strikes me as raising a greater danger, both legal and practical, to the viability of Christie’s action than the attack on his authority to call a special election in the first place. But I guess we will see what the New Jersey Supreme Court thinks.

New Jersey’s Vacant Expression

Note to self- do not make casual observations about state statutes you know nothing about. Because it turns out that the New Jersey election law I cited in my last post is only one of two (or, who knows, maybe more) provisions that the New Jersey legislature, in its wisdom, has seen fit to enact on the subject of filling vacancies in the office of U.S. Senator. The section I cited (section 3-26) appeared to require that a vacancy be filled at the next general election unless the vacancy happened within the 70 days before that general election, in which case it would be filled at the second succeeding general election. However, another section states:

Congressional vacancies.

19:27-6.  In the case of a vacancy in the representation of this State in the United States Senate or House of Representatives, the writ may designate the next general election day for the election, but if a special day is designated, it shall specify the cause and purpose of such election, the name of the officer in whose office the vacancy has occurred, the day on which a special primary election shall be held, which shall be not less than 70 days nor more than 76 days following the date of such proclamation, and the day on which the special election shall be held, which shall be not less than 64 nor more than 70 days following the day of the special primary election.  The writ shall also specify the day or days when the district boards shall meet for the purpose of making, revising or correcting the registers of voters to be used at such special election.

If the vacancy happens in the representation of this State in the United States Senate the election shall take place at the general election next succeeding the happening thereof, unless the vacancy shall happen within 70 days next preceding the primary election prior to the general election, in which case it shall be filled by election at the second succeeding election, unless the Governor shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

Continue reading “New Jersey’s Vacant Expression”

Frank Lautenberg, RIP

Senator Frank Lautenberg of New Jersey, the last World War II veteran serving in the Senate, passed away today at the age of 89.

New Jersey law provides:

19:3-26. Vacancies in United States senate; election to fill; temporary appointment by governor.

19:3-26. If a vacancy shall happen in the representation of this State in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within 70 days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this State shall deem it advisable to call a special election therefor, which he is authorized hereby to do.

The governor of this State may make a temporary appointment of a senator of the United States from this State whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the Board of State Canvassers can deliver to his successor a certificate of election.

Note that if Attorney General Wirt’s definition of “happen” were to be applied to this statute, a vacancy would continue to “happen” until it was filled. In that case Governor Christie could wait until October to fill the vacancy, and the election to fill the remaining portion of Senator Lautenberg’s term (which ends in January 2015) could be delayed until November 2014.

However, it seems clear that “the happening” of the vacancy, at least within the meaning of the New Jersey law, refers to the specific date on which the vacancy occurs, rather than any date during which it continues to exist. Therefore, the election to fill the vacancy must occur at “the general election next succeeding” the occurrence of the vacancy, which will be in November 2013 (when New Jersey will be holding statewide elections).

This Hill article suggests that the Governor can choose to set a special election date to fill the seat. As I read the statute, he would only have that option if the vacancy happened within 70 days prior to the next general election. Therefore, I believe that the election must take place this November. But I could be wrong.


Could Arizona Replace Representative Giffords?

The answer is yes.  Or no, depending on which edition of the Washington Post you read. On Monday, the Post ran an online story entitled “Arizona statute could endanger Giffords’ hold on seat” (which appears to be no longer available on the Post website) explaining that an Arizona statute requires that an office be deemed vacant if the officeholder fails to discharge the duties of the office for three consecutive months.  The article contends that this law could require that Representative Giffords’ seat be declared vacant, although it also indicates that the Arizona Governor and other officials would be loath to take such a step.

On Tuesday, however, the print version of the Post explained that “As Gabrielle Giffords continues recovery, lawyers say Arizona statute won’t endanger seat.”  This time the Post explains how “Washington lawyers” have debunked its original story (it doesn’t put it that way, of course).  According to these lawyers, “any determination of a vacancy would have to be made by Congress.”  Paul Bender is quoted as saying that “the state has no right to say when the office becomes vacant.”

So are these experts right?  Up to a point.  The original story was certainly mistaken to the extent that it implied Arizona had the authority to define what constitutes a vacancy in a congressional office.  The issue of whether a vacancy has occurred is a constitutional question arising under the House Vacancies Clause (Article I, section 2, clause 4), which provides that “when vacancies happen in Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”  It is clear that neither the state nor the executive authority has carte blanche to define for themselves what constitutes a vacancy, and it is likely (though somewhat less clear) that they have no discretion in the matter.  In other words, if a constitutional vacancy occurs, the Governor has the authority, indeed the duty, to call a special election, but the fact that the Governor (or the state) believes that a vacancy has occurred does not make it so.

So how does the Governor know if a vacancy has occurred?  The vast majority of vacancies have been created by death, expulsion, or resignation, and there is seldom any doubt in these types of cases (although there are sometimes ambiguous resignations which require the exercise of judgment).  In the rare instances which do not fall into one of these categories, Governors have not acted on their own, but only after the House has declared a vacancy.  Nevertheless, there would appear to be no constitutional impediment to the Governor acting on her own initiative (nor, to my knowledge, has House precedent prohibited such action). Accordingly, the Arizona Governor could call a special election on the grounds that (in her opinion) Giffords’ seat has become vacant within the meaning of the House Vacancies Clause.

This decision could be challenged in state or federal court (just as the attempt to recall Senator Menendez was recently challenged in and invalidated by the New Jersey Supreme Court).  It is possible that the court would not reach the merits of  the case, however, on the grounds that it is the House which is the constitutional judge of the election and qualifications of its members. In the event that a special election were held, it would be up to the House to decide whether to seat the victor, which would necessarily entail a determination as to whether the seat was vacant in the first place.

On the merits, the answer is not so clear.  The Constitution does not define what constitutes a vacancy.  This makes it distinguishable from cases that are often cited regarding the qualifications of members, because the Constitution expressly identifies those qualifications.  It might be argued that declaring a vacancy when a member is incapacitated is a backdoor way of establishing a new qualification for members, but this does not answer the real question– are there circumstances in which a member’s incapacity renders the office vacant?

In general, neither the House nor Senate have taken cognizance of lengthy incapacities of Members.  As explained by Norm Ornstein in 2002 testimony before the House Judiciary Subcommittee on the Constitution, “[m]any members have stayed in their elected positions for months or longer while comatose or clearly unable to perform their normal duties.” In one case, however, the House declared a vacancy when a congresswoman-elect was in a coma and unable to take the oath of office.  Conceivably this precedent could be extended to members who have been sworn in but become incapacitated to the point that they cannot perform any of the duties of the office.  Doing so, however, would give rise to difficult line-drawing problems (how does one decide whether a member is permanently or merely temporarily incapacitated?).

In short, while the conventional wisdom holds that the Constitution does not permit a seat to be declared vacant because of the incapacitation of its occupant, it is more accurate to say that the matter is unsettled.  That in turn gives rise, as Professor Sandy Levinson notes, to a significant uncertainty as to how the Congress would respond in the case of mass incapacitation.

Still More on the Byrd Vacancy

State officials in West Virginia disagree as to when state law permits or requires a special election to fill a vacancy in the office of U.S. Senator.  The Secretary of State believes that current law requires the election to be held in November 2012, while the Attorney General believes that the law permits, if not requires, the election to be held in November 2010.   

            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.

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.