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

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

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

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

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

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

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

Is a Special Election Required to Fill the Byrd Vacancy?

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

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

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

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

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

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

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

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.

Should He Stay or Should He Go?

Congressman Eric Massa (D-NY) has announced that he intends to resign from Congress effective 5 pm today.  Massa had announced last Wednesday that he would not seek re-election for health reasons, but his decision on Friday to resign immediately was apparently prompted by revelations that the House Ethics Committee is investigating him for “sexually harassing” a male staffer.

It would be a natural assumption that Massa’s resignation reflects some consciousness of guilt.  Massa, however, has come forward publicly and detailed the basis for the sexual harassment allegation, which he says was based on a single remark made to a staffer at a wedding reception.  If one credits Massa’s account, his remark, although juvenile, would seem to fall well short of conduct that would merit discipline, much less expulsion, by the House.

O.k., then why is Massa resigning?  According to Massa: “Mine is now the deciding vote on the health care bill, and this administration and this House leadership have said, ‘they will stop at nothing to pass this health care bill, and now they’ve gotten rid of me and it will pass.’ You connect the dots.”

With all due respect to Congressman Massa, I am having a hard time connecting the dots.  I understand that he is suggesting that the House leadership somehow orchestrated the ethics investigation against him, but I don’t see how that explains his decision to resign.  If he is innocent, one would think that he would want to stay and fight the allegations.  And while one can understand the distaste for public airing of such allegations, resignation doesn’t make much sense if he is going to be publicly discussing them anyway.

More importantly, Massa’s resignation is not, or should not be, simply a personal matter.  Professor Josh Chafetz argues in Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L. J. 177 (2008), that Members of the House have no constitutional right to resign their positions, and that at the time of the framing of the Constitution, it was anticipated that Representatives would not be able to resign their seats without permission from the House, as was the tradition in the British House of Commons.  (By contrast, the Constitution expressly acknowledges the possibility that Senators may resign, a distinction that Chafetz explains as reflecting the differing structure and purpose of the Senate).

It is true that the House historically has not exercised any authority to prevent Members from resigning, and I think it would be incorrect, even if one largely agrees with Chafetz’s argument, to suggest that Members currently need permission to resign from the House.  Nevertheless, there is merit in Chafetz’s proposal that the House consider restricting resignation as of right.  As he puts it:

Is it really so onerous to tell people who ran for House seats that they must remain there for two years?  Members are well compensated, in both financial and psychic wages, and for that compensation we have a right to demand that they commit to putting the public interest above their own for a short period.  Allowing resignation as a matter of right sends the message that House service is a job like any other, a job that one takes because it suits one’s ends, rather than a trust one holds to serve a greater good.  In contrast, when leaving the House is a matter of legislative grace, rather than individual right, the message is sent that devotion to the public weal is held above desire for personal gain.  This, I suggest, is closer to our aspirational conception of the House of Representatives.


As Chafetz notes, the two situations in which Member resignation seems most inappropriate are (1) resignation to escape punishment by the House and (2) resignation for personal advantage or convenience.  Massa’s case involves both of these situations.  He is either leaving to escape punishment or to avoid the inconvenience of fighting false allegations.  Or both.  But in any event, he is leaving his constituents without representation during what is, by his own admission, a time in which the House will be making critical and historic decisions affecting their interests.

Put another way, if Massa is innocent, he should stay and fight for his constituents.  If he is guilty, he should stay and face the music.




Senator Kirk’s Term and the Senate’s Constitutional Responsibility

           From comments made on various blogs, as well as exchanges with the election experts cited in this Politico story, I have distilled the following questions/criticisms regarding my prior post on Senator Kirk’s term. 

            1.  What proposition do the precedents cited in my post stand for?   Both the 1939 case involving Senator Berry and Vice President Marshall’s 1918 ruling involved the question of when an appointed Senator stops receiving compensation.  It may be suggested that this is a question distinct from that of when the Senator’s term ends.  While this could be so, in both cases the Senate clearly understood that the question of compensation turned on when the term ended, and that this issue in turn required an interpretation of the Seventeenth Amendment.  Thus, the Senate Judiciary Committee, in Senator Berry’s case, expressly found that under the Seventeenth Amendment, “the term of a Senator appointed to fill a vacancy in an unexpired term ends on the day when his successor is elected by the people.”  The resolution adopted by the full Senate, similarly, did not merely reject Senator Berry’s claim for compensation, but stated that his term ended on the date of the special election. 

            I don’t think, therefore, that one could plausibly dismiss either the 1939 decision or the 1918 opinion of VP Marshall as congressional “dicta,” as it were.  On the contrary, it could be argued that the non-political context of these rulings (Marshall specifically notes his regret in having to reach the conclusion he does) adds to their force. 

            2.  Can’t the Senate make any decision it wishes?  The question of whether Kirk can continue to serve in the Senate after January 19 is certainly an issue that would be adjudicated by the Senate, assuming that a Senator sees fit to raise it.  When I wrote my post, I was also operating under the assumption that the Senate would have the final word on this issue (an assumption that is probably correct, but subject to a caveat in item 3 below). 

            This does not mean, however, that the Senate is free to do whatever it wishes.  As I have pointed out in other contexts, Congress has an obligation to follow the Constitution, regardless of whether the courts are going to review its actions.  In this case, the Senate is obliged to construe the terms of the Seventeenth Amendment to the best of its ability.  This is not the same thing as “doing whatever it wants.” 

            The Senate does not have an absolute obligation to adhere to its precedents, but I would say that it has an obligation to consider precedents that were established after full deliberation and not to depart from those precedents without good reason.  This is particularly true in a case such as this, where it would seem to matter less when an appointed Senator’s term ends than that there be a clear and established rule on the subject.  Otherwise, the question is liable to be determined in different ways depending on the political interests of the majority, which would tend to undermine the rule of law and bring discredit on the Senate. 

            As Thomas Jefferson wrote in the opening of the Manual he prepared for his own guidance as President of the Senate:  “It is much more material that there should be a rule to go by than what that rule is; that there be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members.  It is very material that order, decency, and regularity be preserved in a dignified public body.”  

            3.   What about the provisions of 2 U.S.C. § 36?   This statute provides that the salaries of appointed Senators shall “continue until their successors are elected and qualified.”  At a minimum, this law would seem to suggest an intent to reverse the decision as to compensation in the Berry case (in the circumstances of that case, the law would apparently allow both the appointed and newly elected Senators to draw salaries until the latter was qualified).  It should be noted, however, that the law in 1939 also allowed appointed Senators to draw salary following the special election under some circumstances, and it was recognized by the legal analysis prepared for Senate Judiciary Committee that this law was neither determinative of, nor necessarily based on, an interpretation of the Seventeenth Amendment. 

            Nevertheless, my earlier post does not preclude the possibility that post-1939 developments might undermine the force of the earlier precedents, although this would depend in part on the extent to which the Seventeenth Amendment question was actually considered and decided by the Senate.  It should also be noted that a pre-1939 precedent, the seating of Senator Felton as an appointed Senator after a special election had already occurred, may have been too quickly dismissed by the Senate Judiciary Committee in 1939.  The imperative here is simply for the Senate to fully consider and harmonize all of its relevant precedents, and to reach a decision as to the best interpretation of the Seventeenth Amendment. 

            Finally, it should be noted that 2 U.S.C. § 36 raises an intriguing possibility that the Senate’s decision as to Senator Kirk could be subject to judicial review.  Under this law, the fact that there is an appointed Senator from Massachusetts apparently prevents the newly elected Senator from drawing a salary the day after the special election, which he or she would otherwise be entitled to do.  The newly elected Senator from Massachusetts would arguably have a justiciable claim for denied compensation under Powell v. McCormack, 395 U.S. 486 (1969), based on the allegation that the Senate had unconstitutionally permitted Kirk to remain in the Senate.

Can Senator Kirk Vote after January 19?

           Paul Kirk, the interim Senator from Massachusetts, has told reporters that he would cast a vote for health care reform, even after the January 19 special election between Democrat Martha Coakley and Republican Scott Brown.  Due to the need to count military and absentee ballots, the Secretary of the Commonwealth may not certify a winner in the election until February 20, a full month after the election is held.  During that time, the Senate may be holding key votes on health care and other matters. 

            There has been controversy surrounding the notion that Kirk would vote for a health care bill even if (as seems possible, though unlikely) Massachusetts voters elect Brown, who has announced his opposition to the bill.  But regardless of who wins the special election, can Kirk continue to vote in the Senate after January 19? 

            My review of Senate precedent suggests the answer is no.  A CRS report notes that “[p]revailing practice is for state governors to fill Senate vacancies by appointment, with the appointee serving until a special election has been held, at which time the appointment expires immediately.”  This practice is in accordance with the Seventeenth Amendment, which provides 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.” 

            The Massachusetts law, passed in September to authorize Kirk’s appointment, provides that an appointed Senator shall serve “until the election and qualification of the person duly elected to fill the vacancy.”  This would seem to support the position that Kirk can continue to serve after the special election is held.  However, the Senate has previously found that substantially similar state laws cannot extend the term of an appointed Senator beyond the date of the special election. 

            On May 7, 1937, George Berry was given a temporary appointment as U.S. Senator from Tennessee to fill a vacancy created by the death of Senator Nathan Bachman.  On November 8, 1938, a special election was held to fill the seat.  In accordance with Tennessee’s normal practice, it took several weeks before the votes were counted and a winner was not certified until January 3, 1939.  The applicable Tennessee law provided that a temporary Senator “shall hold office until his successor is elected at the next biennial election and qualifies.”  Based on this law, Berry claimed that he was entitled to hold office and be paid until his successor was certified and/or actually seated by the Senate. 

            Berry’s claim was referred to a subcommittee of the Senate Judiciary Committee, which held a hearing and considered legal arguments on the matter.   A legal analysis prepared for the subcommittee found that “in view of [Seventeenth Amendment’s] purpose of providing for representation in the Senate by persons elected by popular vote both for full terms and for unexpired terms it seems reasonable to assume that no temporary appointment was to be authorized except for the intervening period between the creation of a vacancy and the day when the people by their votes actually elect a successor, or, in other words, until they elect a person to fill the vacancy.”   

In addition to the text and purpose of the Seventeenth Amendment, the analysis relied on various Senate precedents, including an October 15, 1918 ruling by Vice President Marshall, who found that the phraseology of the amendment was “radically different” than that of various state laws that permitted appointees to serve until their successors were “elected and qualified.”  Marshall concluded that regardless of the fact that Senators-elect must “run the gamit of executive, administrative, judicial and senatorial investigation before they are entitled to qualify and take their seats as Members of the United States Senate,” the terms of their appointed predecessors nonetheless expire on the day of election.  While the Vice President noted that “[e]quitably, it would seem that the present incumbents ought to be permitted to hold until their successors elected on the 5th of November have been sworn in as Senators, [] such . . . is not the law.”   

The Senate subcommittee and committee concluded, based on its hearing and review, that “the term of service of a Senator appointed to fill a vacancy in an unexpired term ends on the day when his successor is elected by the people.”  1939 Congressional Record, p. 998.  There was evidently no controversy among either the subcommittee or full committee regarding this legal conclusion, and the committee then presented a resolution to the Senate for adoption, expressing the view that Berry’s term of service expired on November 8, 1938, the date of the special election.  As Senator Connally, a member of the subcommittee, explained to the Senate, the fact that the Tennessee statute purported to extend Berry’s term until the qualification of his successor was of no force because the statute was “plainly in conflict with the provisions of the seventeenth amendment.”  Accordingly, the Senate adopted the proposed resolution without dissent.  1939 Congressional Record, p. 1058. 

Based on this authority, it would appear that a valid point of order could be raised as to Senator Kirk’s participation in Senate proceedings after January 19, 2010.

Was Senator-Designate Kirk Lawfully Appointed to Fill the Massachusetts Vacancy?

           The Massachusetts legislature has now passed a law empowering the Governor to appoint a temporary replacement for the vacancy created by the death of Senator Ted Kennedy.   As I indicated in a prior post, the Constitution permits it to do this, notwithstanding the controversy over the fact that it had previously stripped the (then-Republican) Governor of this authority in 2004.  Massachusetts Governor Deval Patrick has signed the law and announced his appointment of Paul Kirk to serve as the temporary senator. 

            There appears, however, to be a glitch.  Under the Massachusetts Constitution, laws do not go into effect until 90 days after the Governor signs them, unless the legislature includes a preamble stating that “such law is necessary for the immediate preservation of the public peace, health, safety or convenience.”  Such emergency legislation, however, requires a two-thirds majority.  The temporary appointment  legislation initially contained this language, but it was removed when the bill’s sponsors were unable to get the necessary supermajority.  Therefore, the legislation would not ordinarily go into effect until sometime in late December, rendering it nearly meaningless (as the special election to fill the seat is scheduled for mid-January). 

            But wait, there’s more.  Governor Patrick today sent a letter to the secretary of the commonwealth stating that the temporary appointment law “is an emergency law and, in my opinion, the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith.”  He explains that “[t]he purpose of the Act is to ensure that the Commonwealth is fully represented in the United States Senate as it addresses issues of critical importance to the nation and the Commonwealth.” 

The Governor’s action was based on the following provision in the Massachusetts Constitution:  

If the governor, at any time before the election at which it is to be submitted to the people on referendum, files with the secretary of the commonwealth a statement declaring that in his opinion the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith and that it is an emergency law and setting forth the facts constituting the emergency, then such law, if not previously suspended as hereinafter provided, shall take effect without suspension, or if such law has been so suspended such suspension shall thereupon terminate and such law shall thereupon take effect: but no grant of any franchise or amendment thereof, or renewal or extension thereof for more than one year shall be declared to be an emergency law. 

Got it?  Me neither.  The Governor contends that this provision allows him to disregard the legislature’s failure to find an emergency and order the law to take effect “forthwith.”  However, according to the Massachusetts Republican Party, the provision “can only be used when a law is subject to a referendum” in which case “the law could be subject to suspension of its operation” under the referendum provisions of the Massachusetts Constitution.  In this case the law cannot be subject to a referendum petition or a request for suspension; thus, the Governor’s authority to ensure that the law “shall take effect without suspension” is inapplicable.  It claims that its interpretation is supported by a 1975 opinion of the Massachusetts Supreme Court, and has filed a motion for a preliminary injunction in state court; a hearing is scheduled for tomorrow morning. 

            If the Massachusetts courts rule on the merits of this claim, it will almost certainly be the end of the matter.  However, there is a reasonable likelihood that the courts will hold that the matter to be non-justiciable because, for example, the plaintiff lacks standing or the courts cannot grant any effective relief.  If that happens, there is another way of challenging the legality of Senator-designate Kirk’s appointment.  As in the case of Roland Burris earlier this year, if the Senate believes that Kirk’s appointment is potentially unlawful, it has the option to either refuse to seat him pending an investigation by the Committee on Rules and Administration, or to seat him without prejudice to its right to determine that he is ultimately not entitled to the seat (of course, Kirk’s brief term is likely to expire before the Senate would make a determination either way). 

            I don’t know who is right on the law here, but there appears to be a serious question as to the legality of Senator-designate Kirk’s appointment.  If the Massachusetts courts cannot or will not rule on  the matter, the Senate should review the question.

Is Vicki Kennedy Unconstitutional?

           As has been widely discussed in the last few weeks, in 2004 Massachusetts changed its law providing for the filling of a senatorial vacancy.  In order to prevent Republican Governor Mitt Romney from filling John Kerry’s Senate seat (in the event that the latter won the 2004 presidential election), the Democratic legislature repealed the prior law which permitted the Governor to make temporary appointments in the event of a vacancy. 

            The current Massachusetts law (Chapter 236 of the Acts of 2004) provides that “[u]pon failure to choose a senator or representative in Congress or upon creation of a vacancy in that office, the governor shall immediately cause precepts to be issued to the aldermen in every city and the selectmen in every town in the district, directing them to call an election on the day appointed in the precepts for the election of such senator or representative.  The day so appointed shall not be more than 160 nor less than 145 days after the date that a vacancy is created or a failure to choose occurs.  Filing a letter of resignation creates a vacancy under this section, even if the resignation is not effective until some later time, but the date of the election to fill a vacancy under this section shall be after the resignation is effective.” 

            Pursuant to this law, Governor Patrick has set a special election date of January 19, 2010 to fill the vacancy created by Senator Edward Kennedy’s death last week.  As things stand, the Governor has no authority to make a temporary appointment to fill the seat until the special election. 

            Before his death, Kennedy had urged Massachusetts leaders to change the vacancy law to allow for temporary appointments.  Kennedy also advocated the Governor appoint someone who made an explicit personal commitment not to be a candidate in the special election.  The Massachusetts legislature is scheduled to conduct hearings on this proposal next week, and few will be surprised if the law is hastily changed again to allow for temporary appointments. 

            Nothing in the Constitution appears to prevent a state legislature from changing its law to allow for the temporary filling of a vacancy that has already occurred or, indeed, from changing its law back and forth to permit or forbid temporary appointments depending on who is serving as Governor.  However unseemly such partisan manipulation may be, the Massachusetts legislature would seem to be free to empower Governor Patrick, pursuant to the Seventeenth Amendment, to fill Kennedy’s seat with a candidate of his choosing (the answer to the question posed by the title to this post, referring to widespread speculation that the Governor will appoint Kennedy’s widow, is therefore no).

A more difficult constitutional question is whether the legislature can constrain the Governor’s choice. As Professor Vikram Amar points out (hat tip: Election Law Blog), the Seventeenth Amendment does not give the state legislature any authority to make or constrain the making of temporary appointments. Therefore, he argues that it is unconstitutional for the legislature, for example, to require that a temporarily appointed senator be of the same political party as the senator he or she replaces (a few states have enacted such a requirement). He bases this argument in large part on the fact that “backers of the Seventeenth Amendment . . . wanted to put state legislatures out of the business of picking Senators.”

I am not inclined to read as much into the legislative history of the Seventeenth Amendment as Professor Amar. Unquestionably the amendment was motivated by the belief that senators should be selected by the people, rather than by state legislatures, but it seems likely that the temporary appointment process was based more on the fact that Governors would be able to appoint a replacement quickly than on a relative preference for the democratic accountability of the executive compared to the legislative branch. After all, the original Constitution had authorized the executive to make temporary appointments. And if the framers of the Seventeenth Amendment had been so distrustful of state legislatures, they would not have left it up to the legislatures to decide whether to give the temporary appointment authority to the Governor. (Of course, the performance of the Massachusetts legislature may suggest that greater suspicion would have been warranted, but that’s another story.)

Nevertheless, Amar is probably correct that the legislature cannot constitutionally prohibit the Governor from selecting anyone for a Senate appointment who meets the constitutionally prescribed qualifications (age, residency and citizenship). These qualifications are exclusive and attempts by either the Congress or the states to add to them have been held unconstitutional by the Supreme Court. Thus, were the legislature to enact a “same party” limitation on the appointment power and the Governor were to ignore it, the Senate would probably be obligated to seat the Governor’s choice.

But suppose one looks at the “same party” rule not as an attempt to add new qualifications, but as an instruction to the Governor as to how the legislature wishes the appointment power to be exercised? In that case, the Governor would in essence make a compact with the legislature that only members of the same party will be appointed. Violation of that compact may not be specifically enforceable, but the legislature could revoke the compact (i.e., repeal the temporary appointment authority) if the Governor fails to comply with its instructions. It is difficult to see why this would present a constitutional problem, particularly if the limitation were couched in advisory terms.

A similar analysis would apply to an attempt by the legislature to instruct the Governor to appoint only individuals who promised not to stand as candidates in the special election. This promise would not itself be enforceable (i.e., the legislature could not forbid appointed senators from running in the special election), but there is nothing per se unconstitutional about including such a request/instruction to the Governor in the enabling legislation.

Edward Kennedy, RIP

From Riddick’s Senate Procedure 


Resolution Adopted by Senate in 1905 

Resolved, That until further orders the Sergeant at Arms is instructed not to permit flowers to be brought into the Senate Chamber. 

On September 15, 1983, the Senate adopted the following resolution on this subject: 

Resolved, That notwithstanding the resolution of the Senate of February 24, 1905, upon the death of a sitting Senator, the majority leader and the minority leader may permit a display of flowers to be placed upon the desk of the deceased Senator on the day set aside for eulogies.


The Constitutionality of the ELECT Act


           As an alternative to the constitutional amendment proposed by Senator Feingold (which would eliminate temporary appointment of Senators to fill vacancies), Congressman Aaron Schock of Illinois has proposed H.R. 899, the Ethical and Legal Elections for Congressional Transitions (or ELECT Act), which would require that special elections to fill senatorial vacancies be held within 90 days.  While the ELECT Act would not prevent Governors from making temporary appointments (something that can only be achieved through constitutional amendment), it would greatly diminish the potential significance of such appointments. 

            Over at Election Law Blog, Rick Hasen questions the constitutionality of the ELECT Act.  He argues that it conflicts with the text of the 17th Amendment, which provides 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.”  (emphasis added) 

            While I initially had some concern along the lines expressed by Professor Hasen, a closer examination of the constitutional text, structure and history reveals a compelling case for the legislation’s constitutionality.  This case is laid out below (drawing in part on Professor Vikram Amar’s testimony to Congress this week): 

1.   Article I, § 4, cl. 1, of the Constitution states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.” 

2.   It seems clear that this provision applies to special elections to fill vacancies. 
This is shown not only by the text, but by historical precedent and understanding.   For example, in 1804 the House Committee on Elections noted with regard to a special election to fill a vacant House seat in Pennsylvania, “it is the duty of the executive authority of the respective States to issue writs of election to fill vacancies, yet, by the fourth section of [Article I], it is made the duty of the legislature of each State to prescribe the times, places, and manner of holding such elections.” I Hind’s Precedents of the House of Representatives, § 517.

3.  Congress has used this authority in recent years to regulate the timing of House special elections.  After the September 11 attacks, concerns about a potential catastrophic attack led Congress to amend 2 USC 8 to set a time limit for House elections under extraordinary circumstances, ie, where a large number of House seats were vacant at the same time. 

4.   Moreover, as Amar points out, Congress used its power under Article I, section 4, prior to enactment of the 17th Amendment, to regulate the filling of Senate vacancies.   Amar states: “Congress in 1866 passed an Act that regulated the manner and timing of all state legislative elections of U.S. Senators. The Act said that whenever there was a Senate vacancy of any kind, both houses of a state legislature, on the second Tuesday they were in session, must vote to fill the vacancy, and if no person was elected, both houses must continue to vote at least once each and every day thereafter of the legislative session.” 

5.  The question then becomes whether the 17th Amendment repealed by implication this congressional authority, and left the state legislatures in sole control of the timing of special elections to fill Senatorial vacancies.  Repeals by implication, however, are highly disfavored, and there are several reasons to believe that no such repeal was intended. 

6.  Certainly the 17th Amendment did not repeal congressional authority over general Senate elections.  Otherwise, Congress would have no power to set a uniform date for Senate elections. 

7.  Moreover, the first clause of the second paragraph of the 17th Amendment, which provides for special elections to fill Senate vacancies, contains no suggestion of an intent to displace congressional authority in this regard.  On the contrary, the language of this provision (“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”) is substantially identical to that used in the House Vacancies Clause.  If by using the phrase “as the legislature may direct” they had intended to displace such congressional authority,  it would have been logical to place this phrase at the end of the first clause.    

8.  Instead, the phrase was placed at the end of the second clause, which authorizes the state legislature to empower the Governor to make temporary appointments to fill vacancies.   Since this clause is only applicable to special elections conducted after temporary appointments, it seems unlikely that the phrase was intended to displace congressional authority as to all Senate special elections.   

9.  It is not evident why the framers of the 17th Amendment would have wanted Senate special elections to be treated differently than Senate general elections and House special elections for purposes of congressional authority.  Nor is it evident why they would have wanted to deprive Congress of the authority to regulate only those special elections conducted after a temporary appointment. 

10.  There are several more plausible explanations for why the Temporary Appointments Clause concludes with the phrase “as the legislature may direct.”  The phrase can be explained in one or more of the following ways: (1) it substitutes for the time limitation on temporary appointments, ie, “until the next meeting of the legislature,” contained in the original Constitution; (2) it clarifies that the state legislature has the obligation to set the time of special elections, as the House had concluded with regard to its special elections and (3) it ensures that the legislature will only empower the Governor to make temporary appointments that are truly temporary, ie, that have a specific time limit.  

11.  This still leaves the question of why the Temporary Appointments Clause does not say “as the legislature or Congress may direct.”  Other than inadvertence, the absence of a reference to Congress may be explained by the fact that it is the state legislature alone which may empower the Governor to make temporary appointments, and the drafters wanted to ensure that the legislature directed the time and manner of the special election in conjunction with any delegation of the temporary appointment power.  The fact that Congress might use its authority to regulate elections to circumscribe the state legislature’s discretion in the matter is not inconsistent with the language used in the Temporary Appointments Clause. 

12.  These textual, structural and historical arguments might be overcome if there were evidence that the framers of the 17th Amendment actually intended to displace congressional authority.  According to Amar, however, the evidence is to the contrary.   He indicates that the Members of Congress who debated the amendment evidenced an understanding that Congress would retain the authority to regulate all Senate elections. 

            Given the novelty of the issue, there remains the possibility that a persuasive case against the constitutionality of the ELECT Act could be made.  At the moment, though, I have not heard such a case, and the arguments in support of the Act’s constitutionality seem quite compelling.