When Does the Constitution Require an Election To Fill a Vacant Senate Seat?

Former Governor Blagojevich’s criminal conviction for trying to sell his power to appoint someone to fill out the rest of the term left on Barack Obama’s Senate seat after Obama had been elected President helps frame this important constitutional question: when must an election, rather than a gubernatorial appointment, be used to fill a vacant Senate seat?  The most important court decision on that question was handed down by the Seventh Circuit in Judge v. Quinn, and the Supreme Court recently denied cert. in the case.  The Seventh Circuit concluded that the Constitution required a special election to fill out the rest of Obama’s Senate term; as a result of that election, a Republican, Ron Kirk, replaced the Democrat, Roland Burris, whom Blagojevich had appointed.

To give you a sense of the possible stakes, a group of states filed an amicus brief arguing that the Seventh Circuit’s decision would make unconstitutional the laws of 13 states for filling vacant Senate seats (I don’t know how accurate the claim is, since I haven’t studied those laws).  And the Seventh Circuit itself appears to acknowledge that 27 appointed Senators, since the 17th Amendment, have served unconstitutionally under the Seventh Circuit’s ruling.  The stakes for partisan dynamics in the Senate, as well as political and partisan dynamics between Governors and statewide voters, can also obviously be significant.

When it comes to filling vacant House seats, the Constitution is clear: Art. I, Sec. 2 requires the seat to be filled by election.  With respect to the Senate, matters are more complicated.  The 17th Amendment requires an election, but also provides that the state legislature may permit the Governor to make a temporary appointment for some period:

“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.”

Only two federal courts I’m aware of have addressed the relationship between these two parts, elections and appointment, of the 17th Amendment.  The Quinn decision (written by Dianne Wood, who had been on the short list for both of the Supreme Court seats President Obama has filled) held that every time a vacancy occurs for a Senate seat, the 17th Amendment requires that the Governor must issue a writ scheduling a special election to fill that vacancy.  Thus, the decision restores the primacy of elections in filling vacant Senate seats.  The key follow-on question is how quickly an election has to be held after the vacancy occurs, or, from the other side, how long a temporary appointment can last.  Here matters get trickier.  Quinn concludes that state law controls issues of the timing and procedures for the election; it also holds that states have an affirmative constitutional obligation to create these rules.  In this case, that meant that Illinois had to hold a special election at the next regularly scheduled general election, which was the first Tuesday in November.  The State had taken the position that Burris could serve through the lame-duck session of the Senate (until Jan. 3, 2011), but the Seventh Circuit held the Constitution required a Senator elected in the November election to serve as soon as the election was certified.  Thus, a Republican, not a Democrat, represented Illinois in the legislatively important lame-duck session this past year.

Going forward, Quinn will come into play now every time a Senate seat becomes vacant.  Courts and political actors will be under pressure to figure out how quickly they must move toward a special election to fill vacant Senate seats, given the particularities of different states’ laws.  The last session of the Senate had an exceptionally large number of appointed Senators, and Sen. Feingold sought to introduce a constitutional amendment to require a special election to fill every vacant Senate seat, but that legislative effort went nowhere.  (I should note that Richard Winger has been, understandably, focused on certain ballot-access issues the case raised, but those are minor compared to the major holding on the 17th Amendment’s requirements for holding special elections to fill vacant Senate seats).

I was co-counsel for the Judge plaintiffs in the Supreme Court phase of this litigation and some aspects of the Seventh Circuit litigation, which is why I refrained from blogging about the case until the litigation on the merits was fully resolved.  UPDATE:  I should add that the Court did not take cert., I believe, because there is no conflict yet in the courts of appeals on these issues — as noted, this is only the second case that has ever addressed the issues — and because there were mootness problems in this case.  But if a conflict in the lower courts emerges down the road, it is easy to envision the Supreme Court addressing these issues.

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