Missouri Senate Race
jfduff at WM.EDU
Fri Nov 3 16:05:02 PST 2000
Enclosed please find a very useful analysis by Ron Levin concerning the Missouri Senate race. Ron is not a member of conlawprof list; he asked me to forward the message to the list. If you reply to the list on this topic, you might want to cc Ron at "levin at wulaw.wustl.edu".
1. Anyone who wants a full explanation of the legal framework within which Governor Carnahan's death could affect the 2000 election should read a four-page memo released by the Missouri secretary of state's office. It is clear, readable, and convincing. The memo is posted at:
2. In brief, a Missouri statute explicitly provides that if a candidate dies within four weeks of an election (as occurred here), his or her name stays on the ballot. If that candidate receives the most votes, the seat becomes vacant and is filled as provided by law. Mo. Rev. Stat. 115.379. A vacancy is filled by gubernatorial appointment. Id. 105.040. In this light, a vote for a deceased candidate is by no means a "nullity" under Missouri law -- it can have a definite legal effect.
3. In jurisdictions that do not have such explicit legislation, the consequences of a deceased candidate's "winning" an election have had to be worked out through case law. A good, relatively recent case on point is Evans v. State Election Board, 804 P.2d 1125 (Okla. 1990). As Evans explains, there are two approaches. The majority view or "American rule," which the court followed, is to do what Missouri does: declare the seat vacant. The minority view or "English rule" is to simply ignore the votes for the deceased candidate.
The facts of Evans provide a good illustration of the benefits of the "American rule." The deceased candidate received 90 percent of the votes, and the runner-up, who had received 10 percent, sued to get himself declared the winner. That would have been an absurd outcome, and the court rejected it. As the court explained, the election results can be interpreted to mean that a majority of voters would rather see the position filled through a fallback means provided by law (appointment by the governor) than see the opposing candidate elected. The virtue of the American rule is that it gives voters this choice, while the English rule doesn't.
In less extreme fashion, the same logic could be applied to the forthcoming Missouri contest. Suppose Carnahan receives 52 percent and Ashcroft 48 percent. To declare Ashcroft the winner would honor the wishes of a minority, where the majority were in effect choosing to have the position filled by the governor.
4. The federal constitutional framework for all this seems pretty straightforward: the "Manner" of holding a senatorial election is up to the state legislatures, per Art. I, sec. 4, and the 17th Amendment provides for gubernatorial appointment in the event of a vacancy, if the legislature so ordains. It's hard to see how Ashcroft could assert a federal constitutional right to run against a live opponent.
The learned subscribers to this list may wish to ponder this question: If Mel Carnahan "wins" and the governor appoints his widow, as he has said he will do, for how long could Jean Carnahan potentially serve, without being reelected? The secretary of state's memo says that it will be until the next general election, i.e., in November 2002 (although the memo admits that Missouri law is not explicit on this point). Certainly this is the conventional practice. But the 17th Amendment merely says that the governor's appointment must be "temporary." Could a legislature provide that the governor's appointee may serve five years before an election to choose a successor is held?
Ronald M. Levin
Henry Hitchcock Professor of Law
Washington University School of Law
Campus Box 1120
St. Louis, MO 63130
Ph: (314) 935-6490
Fax: (314) 935-5356
levin at wulaw.wustl.edu
More information about the Conlawprof