Some Authority That Cancelling Senate Election in Alabama, as Hugh Hewitt Suggests, Would Violate the 17th Amendment

A smart reader emails:

I just read your piece responding to Hugh Hewitt, and I had been looking at the question a little since he posted his (really bad) idea.

Valenti v. Rockefeller 292 F. Supp. 851 (1968) offers substantial support for the idea that cancelling (or never authorizing to begin with) a special election would violate the 17th amendment.  In that case, a suit was brought seeking to speed up New York’s special election to replace Robert F. Kennedy after his assassination.
 
This didn’t involve a retroactive change in New York law, but it happened that RFK’s assassination produced about the longest possible appointment scenario under New York law, since it was just after the cutoff where the special election would be in November 1968, and instead NY law would push it to the next even year election in November 1970.  The suit was brought to require New York under the 17th amendment’s vacancies clause to move the election forward.
 
The court rejected the plaintiff’s claim, but did state an important limiting principle which is relevant to Hewitt’s plan:
 
[W]e do agree with plaintiffs that the Amendment’s drafters did intend to place some limit on the discretion of the states concerning the timing of vacancy elections by specifying that a Governor may make only a “temporary” appointment until an election is held. We would have difficulty, for example, squaring the word “temporary” with a statute providing that the Governor’s appointee is to serve out the remainder of a term regardless of its length. The question before this court is whether § 296 exceeds the limits of the discretion conferred upon the states by the Amendment.
 

So while perhaps before the writ was promulgated, Gov Ivey could have delayed it until, say, November 2018 without any constitutional issue, it seems clear enough that under the reasoning in Valenti, a full cancellation would drive right over the limiting principle around “temporary” appointments under the 17th amendment.  Valenti was per curiam summarily affirmed by the Supreme Court at 393 U.S. 405 (1969) “The motion to affirm is granted and the judgment is affirmed.”  (It was a 3 judge district court so no 2nd circuit action)

UPDATE:  Garrett Epps also points me a very important 7th Circuit case making this claim, Judge v. Quinn.

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