November 06, 2008

More on Alaska Replacement Law, and Why the WSJ Washington Wire Was Right

Following up on this post, an alert reader points me to an Alaska Supreme Court case, State of Alaska v. Trust the People, 113 P.2d 613 (2005). The case involved a pre-election challenge to the initiative that changed the Alaska rules for replacing Senate candidates. In the case, the proponents of the initiative challenged a decision of the state's lieutenant governor to keep the measure off the ballot on grounds it was substantially the same as a law recently passed by the Alaska Legislature. The Alaska Supreme Court held that the lt. governor erred because the initiative and the measure were not substantially the same, because the initiative, unlike the new legislatively-enacted statute, did not provide for any temporary Senate replacement pending a special election. That is, under the initiative the Senate seat remains vacant until the special election is called, and the governor has no power to give the benefit of incumbency to a temporary appointee.

None of this was clear to me by looking at the Alaska Code, because the provision on vacancies remains part of the Code. (The initiative apparently was drafted before the code provision added by the state legislative statute, so the initiative did not call for its repeal.) So in the event Senator Stevens must be replaced, this conflict will have to be resolved, and the courts will have to confront a 17th Amendment argument, at least as to temporary replacements.

Posted by Rick Hasen at November 6, 2008 02:37 PM