hawaiioceanlaw.com: Senate Vacancies, And Why Governors Must Pick Temporary Appointees Chosen By Political Parties

Earlier, we wrote about what Hawaii law requires when one of its U.S. Senate seats becomes vacant. But how did Hawaii's statute -- a minority rule, but not a complete outlier -- come to be? And is a rule that cabins a governor's discretion by limiting the picks for a temporary appointee to those selected by a political party even constitutional, or democratic? For more on the latter issue -- do the Hawaii Democratic Party's rules allow for a transparent selection process -- see here.

In this post, my colleage Robert Thomas and I explore those questions.

The Original Statute

Soon after statehood in 1959, Hawaii needed to adopt rules to address what would happen if either of its two new U.S. Senate seats became vacant. In 1961, the Hawaii Legislature passed Act 123 which created a new section in the Hawaii Revised Statutes which provided that vacancies would be temporarily filled by the Governor, without any requirement of input from others, with the only limitation that the temporary appointee be a member of the same political party as the Senator causing the vacancy:

When a vacancy occurs in the office of United States Senator such vacancy shall be filled for the unexpired term at the following state general election, provided that such vacancy occurs not less than sixty days prior to the date of the primary for nominating candidates to be voted for at such election; otherwise at the state general election next following. The Governor shall issue a proclamation designating the election for filling such vacancy. Pending such election the Governor shall make a temporary appointment to fill the vacancy and the person so appointed shall serve until the election and qualification of the person duly elected to fill such vacancy and shall be a registered member of the same political party as the Senator causing the vacancy. All candidates for such unexpired term shall be nominated and elected in accordance with the provisions of this chapter.

After the Constitutional Convention of 1968, the Legislature revised parts of the state elections code, but the Senate vacancy provision remained unchanged until 2007. This is likely because the system worked well enough when Senator Spark Matsunaga died in office in 1990, and Daniel Akaka was appointed by Governor Ben Cayetano to temporarily occupy the seat until the 1990 election, when Akaka was selected by the voters to finish Matsunaga's term. They were all Democrats.

A Changing Dynamic

From 1962 to 2002, every Hawaii governor was a member of the Democratic Party. But in 2002, the voters in the bluest of blue states elected Linda Lingle as the first Republican governor since Bill Quinn got caught up in the Democratic wave in 1962. By 2007, Hawaii's two senators (Inouye and Akaka) were advancing in age, and two years earlier, Governor Lingle had bucked the Democratic Party by appointing Bev Harbin to the state House of Representatives to fill the seat of a Democratic House member who left government for the private sector. Harbin was a Democrat at the time of the appointment, but had switched party affliation only days after the outgoing House member announced that he would be resigning.

2007 Amendment

In 2007, the Legislature adopted Act 57, which amended the above statute to its curent form. The statute now requires the Governor pick a temporary appointee from a list provided by the political party of the Senator causing the vacancy. Governor Lingle vetoed the bill:

[Under the Bill,] Prospective appointees must have been members of the incumbent's party for at least six months prior to appointment, and incumbents who were not members of any political party could only be replaced by other non-party members.

The goal of the present law is to fill vacancies in the State Legislature and the United States Senate in a timely manner when such vacancies occur. These vacancies in elective office are appropriately filled by the Governor, who is elected by the public at large, and, as such, is accountable to the public. The process for filling vacancies in the United States Senate and the Hawaii State Legislature has been in place since 1970 and has not been shown to have compromised the integrity of the election process.

This bill places the ability for determining who may be appointed by the Governor with the political party leadership of the vacating office holder. This is in spite of the fact that these individuals are not elected by the public and, as such, are not accountable to them.

Additionally, the bill, without any stated rationale, narrows the field of qualified candidates that the political party can consider to those who have been registered members of that party for at least six months prior to the appointment. Such a provision fails to recognize that this may unreasonably restrict the pool of potential candidates as the majority of people who personally and philosophically associate themselves with a political party and vote along party lines may not meet this requirement.

The Legislature overrode the veto.

Not Quite Outliers

Does this requirement usurp the Governor's powers, and is it anti-democratic as Lingle's veto message suggested? Remember that the Seventeenth Amendment to the U.S. Constitution requires the voters to make the choice of whom to serve out the remainder of the term, but gives state legislatures the ability to empower the state "executive authority" to make a temporary appointment pending the election. Thus, the Governor's power to select a temporary appointee is a function of legislative grace, not constitutional right.

Other states handle U.S. Senate vacancies differently. For a summary of the varying procedures, see here. Like Hawaii, Utah and Wyoming require their governors to make the temporary appointment from a list provided by the political party of the departed Senator. Arizona requires the governor to appoint from the same political party, but does not provide for the parties to restrict the appointee to a party-selected list. Some states, like Alaska, Oregon and Wisconsin, require a special election.

Constitutional Choices and "Good" Policy

But is Hawaii's requirement that the Governor choose from a list selected by a political party constitutional? Although we can find no reported cases one way or the other, at least one constitutional law scholar argues that such schemes are not because they violate the text of the Seventeenth Amendment:

There is a very strong textual argument that the Seventeenth Amendment prevents the [ ] Legislature from dictating the Governor's specific personnel choices in making a temporary Senate appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive to make [the] appointment."

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

Vikram Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hast. Const. L.Q. 727, 729-30 (2008) (citing U.S. Const. amend. XVII).

Another scholar, however, argues for the opposite result, although he bases his conclusion more on good policy than strict adherence to the Amendment's language:
My own view is that we (and the perhaps mythic "We") would agree that in a political system where political parties play, for good and sometimes for ill, such an important role in structuring what is politically (im)possible, it would be foolish indeed to ignore the party identity of the senator whose death or resignation has necessitated the invocation of the Seventeenth Amendment's provision for gubernatorial appointment of replacements. Especially in our own era, where the two major parties are as ideologically divided as has been the case in American politics for at least the past century, the presumptive majorities that voted for either the democratic or republican senator to be replaced could well feel a sense of justified outrage if a governor used his or her authority to negate that preference and fill the vacant seat with a senator from the opposite party (who would almost certainly be substantially to the right or the left of the prior senator).

To be sure, one can conjure up scenarios whereby the now-absent senator was narrowly reelected only because of name recognition or a last-moment scandal that discredited the favored opponent. But, after all, we are talking only about filling a vacancy until the next scheduled election -- and, in some cases, even before then if a special election were called. If the majority is ready to shift its preferences, it will have that opportunity in no less than twenty-four months and, most often, even earlier. There is no good reason for an "opposite-party governor" to anticipate that change and, in effect, negate the consequences of the closest previous election with regard to expressed party preference.
See Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How to Best Interpret the Seventeenth Amendment, 35 Hast. Const. L.Q. 713, 717-18 (2008) (footnotes omitted).

Final Thoughts

While the validity of Hawaii's political party requirement remains an open question, the U.S. Court of Appeals for the Seventh Circuit issued an interesting opinion that discusses Illinois' vacancy procedures and the Seventeenth Amendment, brought about in that case by the election of President Obama while he was occupying a Senate seat:
Our analysis of the Seventeenth Amendment led to the conclusion that a state must hold an election each time that a vacancy occurs in its Senate delegation, so that the people of the state can elect a replacement senator. To ensure that such an election takes place, the executive officer of the state is required by the Constitution to issue a writ of election. The timing and mechanics of the special election are governed by state law, as contemplated by the Elections Clause of the Constitution and the final phrase of the Seventeenth Amendment's second paragraph. Finally, the Seventeenth Amendment permits the state legislature to empower the state executive to fill a Senate vacancy temporarily by appointment, until a special election takes place.