Daily Kos
Political analysis and other daily rants on the state of the nation

Tuesday | October 01, 2002

NJ's appointment law probably constitutional

Allright, check out what the Constitution has to say about Senate appointments (17th Amendement, second paragraph):

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.
So, it's clear the Constitution gives the states power to handle their own vacancies. Not having ever studied election law, I didn't feel comfortable making such a bold statement as "The NJ is constitutional". However, check out the following analysis, written by an unidentified "well-credentialed" lawyer, and passed on by Jeff Hauser of Hauser Report:
The Seventeenth Amendment, as most people remember, made Senators directly elected by the people. Almost nobody (including your humble author, until a few hours ago) remembers the SECOND paragraph of the Amendment, which provides for replacing Senators who are temporarily missing in action. The Amendment says that the governor gets to appoint a "temporary" senator to any vacant spot, until the time of the next election, OR for such period as the state legislature determines. So, basically, whatever the state says, goes. Logic tells us, of course, that there must be some limits on what the state can do. For example, a liftetime appointment is not really "temporary."

And, indeed, in 1969, after the death of Bobby Kennedy, a three-judge federal panel (comprised of two federal district court judges, along with the then-Chief Judge of the U.S. Court of Appeals for the Second Circuit) held exactly that. New York's Governor appointed an interim successor, and under New York law the stand-in didn't have to stand for election until the next even election year, or about 27 months from the time of his appointment. States, the court held, can make any "reasonable" rules for replacing missing senators. The Supreme Court affirmed the panel without opinion (which basically means that the lower opinion is binding on lower courts, but has less significance than a formal opinion for subsequent Supreme Court decisions). Then, in 1991, a panel of the U.S. Court of Appeals for the Third Circuit (which includes New Jersey) upheld the temporary appointment of Harris Wofford to fill the seat vacated when Senator Heinz died in a plane crash, even though Wofford had not been through a primary process, which ordinarily was required of any Pennsylvania Senate candidate.

Ah, but the Torch isn't dead. Does that matter? Probably not. The 17th Amendment, like the New Jersey statute, makes no distinctions among the reasons for a "vacancy." An empty spot is an empty spot, and the state gets to decide how to fill it. Republicans will therefore have to make the difficult argument that New Jersey's statute is not a "reasonable" rule. That is difficult, among other reasons, because 40 other states have very similar statutes (although most differ in technical details, such as how long before the regularly scheduled election must remain before the fill-in can skip that election and wait until the next one).

This analysis is solid. More of this guy's analysis is posted on Hauser's site (which should soon sport a new design courtesy of yours truly).

Posted October 01, 2002 06:14 PM | Comments (2)


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