“When vacancies happen” and the Oklahoma Senate special election

The Seventeenth Amendment provides, in part, “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.”

Senator Jim Inhofe of Oklahoma has announced his intention to resign from the Senate. But he is not resigning now. Instead, he is invoking a provision from a recently-enacted law, enrolled in Oklahoma in 2021 as S.B. 959, known as an “irrevocable resignation,” as he does not plan on vacating the office immediately but at some point in the future. Some outlets are suggesting that this will trigger a special election this fall.

I’m not sure a special election is appropriate under either the statute or the Constitution.

To start, it’s a really poorly drafted statute (take a read). The statute in one place uses “vacancy or irrevocable resignation,” but elsewhere talks about simply how “the vacancy shall be filled.” The statute, then, seems to suggest that vacancies and irrevocable resignations are different things, but at other times uses them interchangeably, even though they obviously had different meanings. Crucially, an “irrevocable resignation” occurs at some point in the future. That means there is not a “vacancy” under the statute. Consider how the text works together:

C. If a vacancy or irrevocable resignation occurs in the office of a member of the United States Senate from Oklahoma, the vacancy shall be filled as provided in subsection C of Section 10 of Title 51 of the Oklahoma Statutes. The special election called by the Governor shall be subject to the following provisions: . . .

2. Provided, if a vacancy occurs in an even-numbered year on or before March 1, then the special election, if necessary, shall be held that same year in the manner provided in paragraph 1 of this subsection. However, if the vacancy occurs after March 1 in an even-numbered year, then the special election shall be held at the next subsequent regularly scheduled statewide regular Primary, Runoff Primary and General Elections; . . .

4. An irrevocable resignation shall occur when a member of the United States Senate from Oklahoma provides a written letter of resignation to the Secretary of State as provided in Section 12-119 of this title that serves notice of the Senate member’s resignation on a date certain.

“If a vacancy or irrevocable resignation occurs . . . .the vacancy shall be filled . . . .” (2) only speaks of vacancies, and (4) separately defines an irrevocable resignation, with no suggestion that it is a present “vacancy.”

Now, the purpose of the statute might have been to allow for a “vacancy” to arise by a prospective “irrevocable resignation.” That’s, again, not clear to me from the text of the statute. But even with such a purposivist approach, it appears to be inconsistent with the Seventeenth Amendment. “When vacancies happen,” the governor has the power to issue writs of election. Not before they happen. When they happen. And it’s not clear to me that a prospective future vacancy, even as labeled “irrevocable” under state law, means a vacancy happens.

(In NLRB v. Noel Canning, the Supreme Court considered how “happen” fit into the phrase, “Vacancies that may happen during the Recess of the Senate.” But that case included whether there was a power to fill vacancies that “happened” before the recess and not simply during the recess. The Oklahoma situation, in theory, involves a future vacancy.)

Even if there’s no special election, the statute empowers the governor to fill the vacancy temporarily (with several additional qualifications, and one might ask whether those additional qualifications are constitutional, a topic for another day). But I’m not sure Oklahoma can hold a special election, under either the statute or the Constitution, until Senator Inhofe actually creates a vacancy.

UPDATE: Helpful readers point to a similar occurrence (under more direct language) in an older version of the statute for Senator Tom Coburn in 2014. So this isn’t unprecedented for Oklahoma.

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