Federal court concludes Oklahoma’s “irrevocable letter of recommendation” properly triggers vacancy under the Seventeenth Amendment

I blogged earlier about Oklahoma’s unusual “vacancy” statute, with some skepticism about its constitutionality, with follow up about some stronger defenses of the state’s statute in state court briefing. The state court case was quickly tossed, and a federal challenge arose. In Jones v. Stitt, the district court concluded the plaintiff lacked standing to challenge the statute, but conceded that the appellate court might view the issue differently (and the decision has already been appealed). It went on to address the merits (lightly edited for citations):

The amendment provides no explicit guidance as to when “vacancies happen.” Tedards v. Ducey, 951 F.3d 1041, 1050 (9th Cir. 2020). Plaintiff contends the term must be understood as it would have been understood by persons at the time of adoption and cites various dictionary and similar definitions of “vacancy” supporting the idea that, to be “vacant,” an office must be unoccupied. The argument is a respectable one, but the court concludes it takes too narrow a view of the constitutional language and fails to take into account other constitutional principles which impact the result here.

The Seventeenth Amendment itself provides that the states shall have a measure of control and discretion over vacancy elections, particularly the provision that temporary appointments may be made “until the people fill the vacancies by election as the legislature may direct.” Although the appellate cases applying that phrase take somewhat differing views as to whether it qualifies only the proviso as to appointment power or the Amendment more broadly, they all appear to recognize the legislature’s discretion as to directing vacancy elections. See Tedards v. Ducey, 951 F.3d 1041, 1051 (9th Cir. 2020) (confers discretion as to the “direct[ing]” of a vacancy “election”); Judge v. Quinn, 612 F.3d 537, 550 (7th Cir. 2010) (“the proviso gives the state legislatures the power to direct the “election” in which the people “fill the vacanc[y]”); Trinsey v. Com. of Pa., 941 F.2d 224, 232-3 (3d Cir. 1991); Valenti v. Rockefeller, 292 F.Supp 851, 866 (W.D.N.Y. 1968), aff’d. 393 U.S. 404 (1969). As the Valenti court put it, “We read the Amendment to confer a reasonable discretion upon the states concerning the timing and manner of conducting
vacancy elections.” Id.

But . . . the Elections Clause provides additional authorization for states to address the timing and manner of vacancy elections.

The court concludes the “reasonable discretion” and “broad power” conferred on the states by the Seventeenth Amendment and the Elections Clause are sufficient to authorize the procedure that Oklahoma has adopted, and that the Seventeenth Amendment does not mandate a particular and different sequence of events. In effect, the Oklahoma procedure commences the election procedure before the office becomes unoccupied but nonetheless fills the “vacancy” through its control of the “time” and “manner” of the election.

. . . As noted above, the Senate is the judge of the elections and qualifications of its members. U.S. Constitution, Art. I, Sec. 5. So far as the court has been able to determine, no issue was raised by any senator as to the propriety of seating Senator Inhofe and Senator Lankford after they were selected pursuant to some version of the current Oklahoma procedure.

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