Filling Senatorial Vacancies

John Noble jnoble at DGSYS.COM
Fri Mar 9 16:31:51 PST 2001

At 2:48 PM -0500 3/9/01, Daniel Hoffman wrote:
>South Carolina is considering a bill that would require the Governor, in
>filling senatorial vacancies, to choose someone of the same party as the
>person being replaced.
>Based on the Term Limits case, would such a State law not violate the
>Constitution by imposing a new, non-Art. I qualification for Senators?

The Governor's unrestricted nod also is not among the Art. I
qualifications. I don't think it operates as a "qualification" for
Senators, as much it constrains the governor's permissive authority
to fill vacancies pursuant to the 17th Amend.: "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." Term Limits rejected a claim that the power
to add qualifications for Congress was reserved by the Tenth
Amendment, quoting J. Story: "the states can exercise no powers
whatsoever, which exclusively spring out of the existence of the
national government, which the constitution does not delegate to
them. . . . No state can say, that it has reserved, what it never
possessed." The Court emphasized, quoting Powell v. McCormack, the
"fundamental principle of our representative democracy . . . the
people should choose whom they please to govern them." The South
Carolina legislation doesn't depend on reserved authority under the
Tenth Amendment, but instead delegated authority under the 17th
Amendment; and doesn't thwart, and even arguably serves, the
"fundamental principle" of representative democracy. If the power can
be withheld altogether, why it can't it be granted conditionally.

Constitution aside, it sounds like a horrible idea. If a Republican
Governor would otherwise be inclined to appoint a prominent
Republican with a view toward keeping the seat in the next general
election, this legislation would seem to encourage the appointment of
the least respectable/electable member of the opposing party. Even if
he approached the appointment in good faith, he'd end up with a
nominal Democrat with a distinctly Republican bent. Would there be an
obstacle to legislation directing the Governor to appoint someone
chosen or approved by the caucus of state legislators from the same
party as the dead Senator.

John Noble

More information about the Conlawprof mailing list