October 28, 2008

The Alaska Senate Vacancy Issue is Even More Interesting Than I Thought

In this post from yesterday (which contains a correction about the earlier New Jersey case), I wrote about the rules which would apply if Senator Stevens decided to resign before his current term ends. I cited to provisions of the Alaska Elections Code that I took from the Alaska legislature's website.

It turns out, however, that voters passed an initiative in 2004 (in response to the then-governor appointing his daughter to a vacancy) which changed the method of filling vacancies. (The full text of the current Alaska statute is after the jump.)

But it gets better. Because this statute was passed by initiative, there's a question whether it violates the 17th Amendment, which provides in Clause 2: "When vacancies happen in the representation of any State in the Senate, the executive authority of each 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." The people, through the initiative process, get no role.

Calling Vik Amar.

Sec. 15.40.140. Condition and time of calling special election.

When a vacancy occurs in the office of United States senator or United States representative, the governor shall, by proclamation, call a special election to be held on a date not less than 60, nor more than 90, days after the date the vacancy occurs. However, if the vacancy occurs on a date that is less than 60 days before or is on or after the date of the primary election in the general election year during which a candidate to fill the office is regularly elected, the governor may not call a special election.

Sec. 15.40.145. Temporary appointment of United States senator. [See revisor's note]..

When a vacancy occurs in the office of United States senator, the governor may, at least five days after the date of the vacancy but within 30 days after the date of the vacancy, appoint a qualified individual to fill the vacancy temporarily until the results of the special election called to fill the vacancy are certified. If a special election is not called for the reasons set out in AS 15.40.140 , the individual shall fill the vacancy temporarily until the results of the next general election are certified.

Posted by Rick Hasen at October 28, 2008 08:26 AM