Filling Vacancies in Senate

                The topic of discussion for this Constitution Monday comes from the Seventeenth Amendment to the Constitution of the United States:  “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 provision gave each State the authority to make sure they are adequately represented in the U.S. Senate.  Any vacancy can be filled in one of two ways:  by election or by the governor appointing someone to fill the vacancy.

                W. Cleon Skousen explained that this “provision was very similar to Article I, section 3, clause 2 of the Constitution, which provides:  `If vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.”

                Skousen further explained how vacancies are usually filled:  the governor resigns his office and the lieutenant governor becomes governor and appoints the former governor to be the senator – then both run as incumbents in the next election and win.  (See The Making of America – The Substance and Meaning of the Constitution, pp. 747-748.)

                Todd Zywicki of The Heritage Foundation explained, "… To avoid the hardship to a state suffering a lack of representation pending a regular election, the Seventeenth Amendment also provided for methods of election or appointment to fill any unexpired term.

                “The language and history of the clause indicate that the states have the power to balance conflicting goals of a speedy popular election versus the state’s interests in conducting elections on a regularized basis so as to maximize voter participation and minimize administrative expense….

                “The clause does not define when a vacancy exists.  During the 2000 election, the people of Missouri knowingly voted for the deceased Mel Carnahan for Senator.  The governor of the state declared this election to have created a vacancy, which he filled by appointing Carnahan’s widow, Jean Carnahan, and then issued a writ of election for 2002.  It remains an open question, however, whether the voters can create a Senate `vacancy’ by knowingly voting for an ineligible candidate and allowing the governor to fill the position with an individual of his choice, as opposed to simply declaring the votes to be improper or `spoiled’ ballots.”  (See The Heritage Guide to the Constitution, p. 415.)

                Of course, states can fill their vacancies the way Alaska did when Frank Murkowski was elected governor.  He appointed his daughter Liza Murkowski to fill the seat he vacated – and now Alaska is stuck with the most liberal Republican in the U.S. Senate!  Maybe we can replace her in 2016 with a conservative Republican!