December 14, 2006

Senator Johnson's Illness and Control of the Senate

With the news this morning that Senator Tim Johnson (D-S.D.) has undergone emergency surgery and is in critical condition following a possible stroke, there is already speculation that control of the Senate could shift back to Republicans.

We all hope for a speedy and full recovery for the Senator. But what happens if he does not recover? The situation seems clearest in the event of a Senator's death. The 17th Amendment to the U.S. Constitution provides: "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."

According to news reports, under South Dakota law, the governor has the power to name a temporary appointee for the remainder of Sen. Johnson's term, which expires in 2008. According to news reports, the governor is a Republican and he could well name a Republican, shifting the balance in the senate from 51 D- 49 R to 50-50, with Vice President Cheney casting the deciding vote. (Last time we had a 5050 split, after Sen. Jeffords left the GOP and voted with Democrats, giving them control for a brief time.)

If the Senator is incapacitated, the Constitution gives the Senate the apparent sole authority to remove him from office. Article I, Section 5 provides in pertinent part that "Each House shall be the judge of the elections, returns and qualifications of its own members...." Historically, there have been Senators who have been incapacitated but who have remained part of the Senate. I would like to hear from others if there are historical examples of the Senate removing Senators on grounds of incapacitation.
UPDATE: Over at the election law listserv, John Fortier writes (reprinted here with permission):

    There have been numerous cases of senators remaining in their seats for extended periods of incapacitation, but no case of a sitting senator's seat being declared vacant because of incapacitation. There are a couple of limited House precedents for a seat of an inacapacitated member being declared vacant for incapacitation, but both instances involve members elected while incapacitated and who were unable to take their seats.

    As for incapacitation in the senate, there are several cases, two of especially long duration. Both Karl Mundt (SD) and Carter Glass (VA) were in comas for long periods of time. Both served out their terms. There was some rumbling in VA that the seat should be declared vacant because of Glass's incapacitation, and I believe there was an effort in the state legislature to get some sort of declaration. But ultimately, the effort failed.

    In the House, there are two partially relevant precedents. First, Gladys Noone Spellman was a long time Rep. from MD. In the 1980s, she suffered a massive heart attack and went into a coma shortly before election day, but she was elected by the voters. She was still in a coma when the Congress opened on January 3rd, and eventually her seat was declared vacant as she was not able to be sworn in. Second, in the early 1970s, majority leader Hale Boggs (LA) and congressman Nicholas Begich (AK) were lost in a plane crash in Alaska, again during the campaign before the November election. The plane was never found. Both men were elected by the voters. In the next congress, the seats were ultimately declared vacant when the states of LA and AK declared them presumed dead.

    The bottom line is that no sitting senator or congressman's seat has ever been declared vacant due to incapacitation. For those with more interest in the matter, our AEI-Brookings Continuity of Government Commission spent a lot of time on the vacancy and inacapacitation issues in the context of a catastrophic attack on Congress. Some of the precedents are referenced in our report which can be found at

    Posted by Rick Hasen at December 14, 2006 05:57 AM