This recent business with Senator Tim Johnson has gotten a lot of us thinking—including myself—about how different states replace senators who either resign from or die in office. Due to recent events, we know that in South Dakota it’s the governor who gets to appoint a replacement, and he can name anyone he wants to, regardless of party affiliation, as long as they qualify under the U.S. Constitution.
But different states do it in different ways. I know that in Hawaii and Wyoming, the governor is obliged to appoint a replacement from the same party as the resigning/dead senator, and that in Oklahoma, the governor doesn’t get to appoint a replacement, but that a special election is held within ninety days of the seat being vacated.
I figure there are other states that run things differently. Does anyone know where I can find a list of all fifty states’ procedures for succession of vacant Senate seats? Such a list is surprisingly difficult to find. Or maybe I’m just lazy. But I did look! Anyway: anyone know?
I looked a bit and couldn’t find one. You may do better just getting people from the 50 states to chime in.
PA- Governor appoints a Senator who serves until the state can schedule a special election; Harris Wofford was appointed in May 1991 and faced a special election in November.
TX and OR use special elections. I believe MA changed to an election to prevent Gov. Romney from appoint a replacement for Sen. Kerry if he had won the presidency.
Alaska allows appointments (and obviously doesn’t have a problem changing the law to allow the incoming governor to appoint his daughter to his old seat)
When in doubt, go to the Consitution, specifically the 17th Amendment:
The vast majority of states allow the governor of the state to appoint a replacement senator who usually serves until the next general election. The replacement senator usually is not limited to any party, although there were exceptions noted above.
In theory (and it’s happened a few times), a governor can resign and then ask for his/her successor to send him/her to the Senate. This doesn’t happen much anymore because the last few people who tried it, didn’t win election to a full term.
Yeah, I know what the Constitution says. It gives each state the right to make up their own minds. What I’m looking to find out are the actual decisions of the various legislatures, what the conclusions were of how to use this power afforded them by the Seventeenth Amendment.
I guess Neptunian Slug is right: I’ll have to wait for others to chime in. Or maybe just dig through each state’s constitution and figure it out for myself (but it’s so much work!) I found New Hampshire’s constitution hard to navigate. Or maybe I was just tired. I’ll try again.
Well, I know that in New York, the governor appoints the senator. When Robert Kennedy was killed, Nelson Rockefeller appointed Charles Goodell. I don’t believe he ran it by the legislature.
In Massachusetts, the governor appointed Benjamin Smith to replace JFK when he went to the White House.
Of course, Hawaii and Wyoming are, for all practical purposes, one party states. Almost all of Hawaii’s top officials are always Democrats, and almost all top officials in Wyoming are Republicans. So, the legal requirement that a Senator be replaced by a member of the same party is pretty meaningless, because you could pretty much count on Daniel Inouye being replaced by a Democrat and Craig Thomas being replaced by a Republican whether or not that rule was in place.
I have no idea what will happen with Tim Johnson. Certainly, IF he were to be replaced by a Republican governor’s choice, that would suck for the Democrats. But numerous liberal SDMB regulars used to salivate over the prospect of Strom Thurmond dying and being replaced by a Democrat governor’s choice. So, I’d bet very few liberals object to the concept per se- just to how it might affect them in any given case.
Wrong on both counts. Hawaii is a Democratic state with a Democratic legislature but it has a Republican governor, while Wyoming is a Republican state with a Republican legislature but it has a Democratic governor. In both cases the replacement of one of either state’s sitting senators would mean a party switch if that rule weren’t in place.
I see. So you’re saying that it would be okay to flip control of the Senate through a partisan appointment just because you saw other people who feel the same way? You feel it’s more important to exact petty revenge for something that hypothetically could have happened, rather than consider what might be the right thing, right? Is that what I’m to take away from your comment?
Thanks, Freddy. This is probably the way to do it: sifting through fifty statutes. I like the Illinois way, except I’d be happier if they also required that the governor appoint someone of the same party, even though we’re talking about an interim senator who won’t have the job for more than two years, tops. It sounds like Missouri has the same kind of statute, remembering the way the drama surrounding the late Mel Carnahan played out. Jeanne Carnahan was appointed and was up for reëlection two years later, even though Missouri wasn’t scheduled even to have a Senate race that year.
Senators appointed to fill in a vacancy tend to fall into two categories:
caretakers (such as Paul Wellstone’s replacement)
very well-heeled candidates who can run multiple times.
When Pete Wilson left the Senate to become governor of California, he appointed another Republican, John Seymour, to replace him. When it came time for Seymour to run for election in his own right, Seymour faced off against Dianne Feinstein, while the other seat, which was being vacated by Alan Cranston, had Barbara Boxer face Bruce Herschensohn.
The Democrats wanted Feinstein to run against Seymour because she would have to raise money two years down the road to run for a full six years.
It sees to me that the “appoint someone from the same party” restriction would be easy to get around, because those states that require party registration have no restrictions on when or how often you can switch parties, and no option for the party to reject members.
Say SD had that in it’s law. And Democratic Senator Tim Johnson is unable to continue. So Republican John Thune, who lost to Tim Johnson in last months’ election, registers as a Democrat, and then Republican Governor Mike Rounds appoints him as the replacement for Democrat Tim Johnson.
Sure it would upset a lot of people (but probably not the 49% or so who voted for Thune in November). But is there anything about this that would violate the law?
I suspect that if a lawsuit were ever filed, the requirement that the replacement be from the same party would be declared unconstitutional. I know the laywers can quote the landmark case in which SCOTUS said that Congress cannot add requirements to become a legislator outside the Constitution. As we in California found out when we passed a term-limit law, states cannot add requirements to become (or not become) a legislator outside the Constitution. In other words, if a requirement or restriction is not in the Constitution, it’s not in the law.
Election of Senators is a different animal, having been addressed in the 17th amendment.
**
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. **
This effectively gives tremendous latitude to legislatures in those restrictions.
Not necessarily. I see the legislature as having two choices: to empower the executive to appoint any constitutionally eligible individual, or to do nothing at all. I agree with SaintCad that they can’t empower on the one hand and restrict on the other–that would be a back door way of adding qualifications for Senate service.
The SCOTUS decision in 1994 dealt with the powers of the states and the rights of the people. The states felt that the clause giving states the power to regulate the time, manner and place of elections give them the right to restrict who could appear on a ballot. But the court decided that the people have the right to choose whom they want and states are not permitted to restrict that right.
However, the 17th amendment clearly gives a power to the states, the power to fill vacancies. The amendment effectively allows states remove the people from the equation and empower the governor to appoint. Adding this restriction does not violate the right of the people to choose their representatives, which the term limits imposed by states clearly did.
Personally, I believe that states can argue that the will of the people was represented in choosing a particular party member to a seat and they are merely compelling the governor to uphold the will of the people expressed in the prior election.
All of that said, the law has never been challenged and the Court can do whatever it wants.