Fordham University School of Law Rule of Law Clinic*
Report by Nora Donnelly**, Alexa Green*** & Lea Vallone****
3 Fordham L. Voting Rts. & Democracy F. 85

Executive Summary

Legislative vacancies are an often-overlooked area in democratic accountability and election administration discourse. While the Seventeenth Amendment and Article I, Section 2 of the Constitution set a general structure for filling federal vacancies, much of the process is left to the states’ discretion. Current practice consists of fragmented policy and a range of practices for filling vacancies in the U.S. House of Representatives and Senate. Data shows a few key areas of concern in existing practice. First, the length of House vacancies has been increasing, leaving constituencies unrepresented for longer periods of time. Second, individuals appointed by governors to fill Senate vacancies on an interim basis enjoy a significant incumbency advantage. These issues are not adequately addressed by the wide variety of existing processes that have been left unexamined for far too long.

This Report recommends reforms to states’ policies for filling federal legislative vacancies. It begins by examining the history and reasons for the current landscape of federal legislative vacancy policy and pulls from this background key principles to guide the Report’s reforms—democratic legitimacy, the exercise of executive power, quality of representation, and apprehension towards political gamesmanship. It then expands on the existing practice in the states, and the data available on these policies. The Report then proposes three sets of reforms to address the issues identified in existing practice, and recommends states adopt these by statute, or when necessary, state constitutional amendments.

States should implement the following reforms:

(1) Eliminate special election primaries and instead hold open general elections, ideally using ranked choice voting, to shorten the length of time a seat sits open;

(2) Mandate special elections within ninety days of a vacancy, while still allowing special elections to be held concurrent with regularly scheduled general elections when vacancies occur within 150 days of a regularly scheduled election. Additionally, states should authorize the special election process to begin when a resignation is announced, rather than waiting until the seat is empty;

(3) Adopt a norm of selecting Senate appointees who will act as caretakers, rather than individuals who seek appointment to gain an advantage in the subsequent election.

These reforms would promote democratic values, especially democratic legitimacy, fair exercise of executive power, quality representation, and apprehension towards political gamesmanship, while still accounting for practical concerns related to administrability of special elections.

Introduction

In the late 1990s and early 2000s, when a seat became vacant in the United States House of Representatives either through resignation, death, or expulsion, it remained vacant for an average of 104 days.¹ Twenty years later, the average seat now sits open for 173 days.² This roughly two-and-a-half month increase over twenty years has received little attention, but it is indicative of the way laws governing federal legislative vacancies have been under-analyzed by scholars, government officials, and the public, allowing anti-democratic systems to persist with minimal scrutiny.

Vacancies in the United States Senate present their own unique issues due to governors’ ability to fill vacancies via appointment, a practice not constitutionally authorized for the House. Senate appointments limit vacancy lengths considerably, but they also can help entrench individuals in office who were hand-picked by the governor, rather than the voters. Over the last thirty years, of the nineteen Senate appointees who subsequently sought reelection, fourteen were successful.³

This Report focuses on the state laws that govern federal legislative vacancies and the impact they have on our electoral system. It highlights the length of House vacancies and concerns about entrenchment of Senate appointees as key issues and proposes a slate of reforms to mitigate these problems. Specifically, it advocates for (1) eliminating special election primaries and instead using open general elections; (2) reforming special election timelines through the imposition of time caps, as well as authorizing special elections to happen in advance of vacancies; and (3) establishing a caretaker norm for Senate appointments that emphasizes quality of representation and discourages appointment of those who wish to run in the next election.

This Report first recommends eliminating primaries for selecting candidates in special elections. Instead, states should implement open general elections. In an open general election, all candidates in the special election would be listed on one ballot. To prevent a candidate from winning with low plurality support, these elections should use ranked choice voting. Open general elections would increase democratic legitimacy and efficiency compared to selection of candidates through either primaries or appointment by party leaders.

Next, the Report addresses the timelines for holding Senate and House special elections. Writs of election should be issued within ten days of a vacancy and elections should occur within eighty days of the writ of election’s issuance. This total timeline of roughly ninety days provides for relative flexibility in election administration while substantially shortening the average length of vacancies. If a vacancy occurs within 150 days of a regularly scheduled general election, the special election should be held concurrent with that election. Additionally, when it becomes clear that a vacancy is imminent, such as in the case of some resignations, governors can and should be authorized to issue writs of election prior to the vacancy. This would substantially shorten the amount of time that a seat is left vacant, and the electorate is left unrepresented.

Finally, we propose establishing a caretaker norm for interim United States Senate appointments that emphasizes quality of representation and discourages appointment of individuals who wish to run in the next election. When governors appoint individuals to fill vacancies who then run to be elected to their seats for a full term, those candidates have an unfair advantage over candidates without the same name recognition, Senate experience, or public support from the governor. Avoiding this phenomenon by appointing caretakers shields elections from this influence, and it also ensures that appointees will spend their appointment in Washington carrying out the duties of the office, rather than campaigning in their home states. The ideal caretaker would be a retired public official with a distinguished career in public service who understands the legislative process. Their role would be to continue voting and offering constituent services in accordance with the vacating senator’s practice until a more permanent replacement is elected.

These reforms are intended to minimize the anti-democratic elements of existing legislative vacancy laws, while still accounting for practical concerns related to administrability of special elections. The sections below explain the existing practice related to legislative vacancies and the rationale for the proposed reforms. Part I highlights the historical origins of legislative vacancy procedures as well as the constitutional background that frames this discussion. Part II gives an overview of existing data on state legislative vacancy laws and practice, emphasizing the areas of concern this Report seeks to address. Part III explains the various options for reform and the benefits of the reforms proposed herein.

I. Constitutional Background

This Part begins with an overview of the core constitutional text governing legislative vacancies. It then expands on the history of these provisions, particularly the reforms established in the nineteenth and twentieth century, as well as historical state practice. It concludes by drawing key principles from this legal history to guide legislative vacancy reform efforts.

A. House Vacancies: Article I, Section 2

Article I, Section 2 of the U.S. Constitution requires elections to fill vacancies in the House of Representatives: “When the vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election.”⁴ The “Executive Authority”—state governors—are authorized to issue the orders scheduling special elections. The Elections Clause in Article I, Section 4 gives state legislatures the authority to set certain parameters for governors in setting special elections, absent conflicting federal law. It provides that the “Times, Places and Manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof. Congress may at any time by Law make or alter such Regulations. . . .”⁵

Additionally, layered on top of Article I is a federal law that authorizes state legislatures to provide for the scheduling of special elections to fill House vacancies:

the time for holding elections in any State, District, or Territory for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by death, resignation, or incapacity of a person elected, may be prescribed by the laws of the several States and Territories respectively.⁶

Most states set a window of time for holding special elections.⁷ States also have authority to set procedures for the selection of candidates. For instance, some states require a primary election where either a plurality or majority of votes is needed to win the nomination.⁸

B. Senate Vacancies: The Seventeenth Amendment

The Seventeenth Amendment provides for the direct election of senators in regular elections, as well as the procedure for filling vacancies in the Senate: “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.”⁹ This amendment allows state legislatures to authorize their governors to make temporary appointments to fill vacant Senate seats. The temporary appointment may remain in office until a special election is held, or, for states that do not hold special Senate elections, at the next regularly scheduled election.

C. Historical Context: The Reformation Parliament to Modern America

The modern practice of holding special elections to fill legislative vacancies likely dates back to the Reformation Parliament in the early 1530s.¹⁰ While a variety of procedures were used to fill vacancies in early America, the colonies held special elections routinely.¹¹ The U.S. Constitution adopted special elections as the means for filling vacancies in the House, but not the Senate. While the Article I, Section 2 requirement of elections to fill House vacancies was part of the original Constitution, the current Senate vacancy rule was not established until the Seventeenth Amendment’s ratification in 1913.¹² Before the Seventeenth Amendment, the Constitution authorized state legislatures to elect senators for regularly scheduled terms, and it also allowed legislatures to fill Senate vacancies when they arose.¹³ If a state legislature was out of session when a vacancy occurred, governors were allowed to make temporary appointments until the legislature could fill the vacancy.¹⁴

The ratification of the Seventeenth Amendment resulted from increasingly widespread dissatisfaction during the nineteenth century with this original system—with critics arguing direct election by voters would provide greater democratic legitimacy.¹⁵ The campaign for ratification started nearly a century prior to the amendment’s adoption, with the first direct election amendment proposed in 1826.¹⁶ Eighty-six years of debate and 187 resolutions followed before the Seventeenth Amendment was ultimately ratified.¹⁷ Progressive reformers were integral to the push for ratification, as were state legislatures, many of which championed popular election and even began the process of using their constitutional authority to call a constitutional convention on the subject.¹⁸

Reformers sought to remove the authority to elect senators from state legislatures, citing corruption within the appointment process, the negative influence of “political machines,” and the power of special interests.¹⁹ While a core rationale for the Amendment’s ratification was the perception that state legislatures were more concerned with selecting candidates in exchange for favors and money rather than evaluating candidates’ competency, data suggests that corruption was less prevalent than the public generally believed.²⁰ While only fifteen of the 1,180 Senators sent to Washington between 1789 and 1909 faced allegations of corruption, the vast majority of these charges were levied during the movement towards election of senators in the late nineteenth century, which added fuel to the perception that the system was inherently corrupt.²¹

Despite these relatively low numbers, headlines from the period highlighted the nexus between the corruption scandals and the fight for direct elections that was simultaneously being waged in Congress.²² For instance, in 1910, it was reported that Illinois state lawmakers had accepted cash bribes and portions of a “jackpot” slush fund to appoint William Lorimer to the Senate.²³ While the Senate cleared Lorimer of wrongdoing due to inadequate proof, the night before the decision came down, separate charges were filed against Senator Isaac Stephenson of Wisconsin alleging that he too had obtained his seat through corruption.²⁴ Stephenson’s right to his seat was eventually sustained by a majority vote of the Senate, but it is not clear that the vote was based on a belief in his innocence.²⁵ Rather, the investigating committee’s majority report dismissed the charges because a majority of senators believed that violating Wisconsin’s primary campaign finance laws did not warrant expulsion since state primaries are not a part of the constitutional election process.²⁶ Though both men kept their seats, the debate surrounding the allegations served as an important impetus for the change in Senate election procedures.²⁷ Prominent news stories like these helped progressive reformers rally the public and pressured Congress into passing a constitutional amendment.²⁸ On April 8, 1913, the Seventeenth Amendment was ultimately ratified.²⁹ It provided for direct election of senators but, importantly, it included a less democratic option for filling vacancies: state legislatures were allowed to authorize governors to appoint interim senators until permanent replacements could be elected.³⁰

Historical state legislative appointment schemes shed further light on the variety of approaches and considerations for filling vacancies in legislative offices. For example, the first draft of the 1780 Massachusetts Constitution contained an indirectly elected Senate and permitted the state legislature to fill any vacancy from a list of candidates nominated by the voters.³¹ The framers ultimately opted for a directly elected Senate instead, with the state legislature filling vacancies by selecting from among the unsuccessful candidates for that seat at the last election.³² Kentucky and Maryland’s first constitutions used another popular approach: filling state House vacancies through special elections and state Senate vacancies by the Senate itself.³³ The variation in state approaches is indicative of both the many ways vacancy procedures have been implemented and the difficulty of determining the best possible process.

D. Guiding Principles

The constitutional text that forms the basic structure of the federal legislative vacancy scheme and the history surrounding it provide an important backdrop for our proposed reforms. Numerous principles have shaped the discourse surrounding vacancies in legislative offices, reflecting foundational constitutional concepts and highlighting core concerns about democracy and representation. Of particular relevance to this Report are four principles: democratic legitimacy, exercise of executive power, quality of representation, and preventing political gamesmanship.

At the core of this discussion lies the principle of democratic legitimacy, which is inherent in the ideal of popular representation and underscored by mechanisms holding governmental bodies accountable in the appointment process. The importance placed on direct election in Article I, Section 2, and eventually in the Seventeenth Amendment, is indicative of the centrality of democratic control to our constitutional scheme. And the Elections Clause’s grant of discretion to the states to determine the contours of their elections serves as an acknowledgement that democratic processes need to be tailored to the people.³⁴ These twin goals—of ensuring that the people have direct control over their representation and that election processes are designed to best effectuate voters’ preferences—are foundational for our reforms.

Moreover, the tension between granting executives the power to efficiently fill seats and taking power away from the people in order to do so is evident in the Constitution.³⁵ The exercise of executive power is inherent in the process of filling legislative vacancies, given the key role the Constitution gives state executives in setting special elections and appointing U.S. senators.³⁶ This power is not limitless, though; governors are imbued only with the power to make temporary appointments. Similarly, the Constitution authorizes governors to issue writs of election to fill House vacancies,³⁷ but some states have restricted this ability by requiring writs to be issued in certain time frames.³⁸ The history surrounding the Seventeenth Amendment’s ratification likewise provides an analogy to this Constitutional tension by showing the danger of granting too much power to political actors, and the overarching need to hold state authorities accountable. The need to both utilize state executives in the vacancy process and ensure they are acting in the public interest is core to the legislative vacancy debate.

The tenet of quality representation, while related to democratic legitimacy, underscores the idea that the systems in place for filling vacancies affect how well the individual chosen to fill a seat will be able to do the job. This principle’s significance is evident in the popular rejection of the old system of state legislatures’ selection of U.S. senators, and the related concerns that spearheaded a movement towards a more democratic process in the lead up to the Seventeenth Amendment. The importance of quality representation is also a reason why timelines matter; constituencies cannot be adequately represented when seats are left open for extended periods of time.

Lastly, the Progressive Era also highlighted wariness of political gamesmanship as a core rationale for reforming the original Senate election process. While politicking is an inevitable part of a democratic system, when it comes to core democratic processes, concerns about politicians using these procedures to their political advantage rather than prioritizing the will of the people are at their zenith. The selection of representatives is the most significant way the public retains control over its government in a democratic republic.³⁹ When government structures leave open the opportunity for backroom dealing to infringe on this integral process, it runs the risk of cutting off a core element of representative democracy. The wariness of political gamesmanship counsels transparency and democratic choice as ways of safeguarding against clandestine dealings that undermine democratic values.

These principles and the constitutional text and history from which they were extracted are important guidelines for any state seeking to reform its legislative vacancy laws. While practical concerns about costs and administrability necessarily factor into any reform effort, the importance of prioritizing democratic principles when restructuring electoral processes cannot be understated. A government by the people cannot function adequately when the voters’ role in selecting a representative is merely an afterthought. Maintaining these tenets as the standards against which vacancy procedure should be judged ensures that our laws adequately protect the right of voters to choose their representation free from interference.

II. The Modern Legislative Vacancy Landscape

Against the legal backdrop outlined in Part I, states have developed a variety of laws and practices related to federal legislative vacancies. This Part provides an overview of existing House and Senate vacancy procedures and highlights the areas of concern related to the guiding principles outlined above.

A. The Increasing Length of House Vacancies

While the U.S. Constitution directs states to hold elections to fill House vacancies, it does not specify the time frame in which they must occur. As such, states have discretion in determining how long to leave a seat open, and in some states, the governor is given authority to determine when to call the election.⁴⁰ This creates a large variety in the length of vacancies across the country, and much of the data available on House vacancies focuses on this phenomenon. This section provides an overview of this data and highlights three key takeaways: (1) House vacancies have been getting longer in recent decades, (2) the trend seems to be related to partisanship, and (3) the House now frequently operates without all its members.

First, the average length of time House seats have been left unfilled following vacancies has increased in recent decades. An analysis of data from the U.S. House of Representatives shows that over the past twenty-five years, the average vacancy length has increased not by days or weeks—but by months.⁴¹ While vacancies between 1997 and 2001 lasted for an average of 104 days, vacancies between 2017 and 2021 lasted an average of 173 days.⁴² This pattern is also present in the number of extremely long vacancies during these two periods. While only one of the twenty-one vacancies that occurred between 1997 and 2001 was over 150 days long, twenty-one of the thirty-nine vacancies between 2017 and 2021 were over 150 days long, and two surpassed 350 days.⁴³ This increase represents a shift from roughly four percent of vacancies exceeding 150 days to over 50 percent.

Second, the trend towards longer vacancies seems to be related to partisanship.⁴⁴ While experts have pointed to changes in federal administrative laws—like the enactment of the Military and Overseas Voter Empowerment (“MOVE”) Act in 2009⁴⁵—contributing to increased election timelines, administrative requirements alone do not explain such a dramatic shift.⁴⁶ A FiveThirtyEight analysis examined how the increase in partisanship in recent decades has impacted the filling of vacancies.⁴⁷ The study compared House vacancies in districts whose representatives belonged to the same party as the governor to those in which the representative and the governor belonged to different parties.⁴⁸ From 1997 to 2010, the analysis found little to distinguish the length of vacancies in the opposing party districts.⁴⁹ In fact, seats in these districts stayed vacant for slightly less time than those in districts that aligned with the governor’s party: opposing-party districts averaged ninety-eight days, compared to 113 days for same-party districts.⁵⁰ Since 2011, while both categories have seen increases in the length of vacancy, opposing-party districts now have considerably longer vacancies than same-party districts.⁵¹ They stayed vacant for 192 days on average, compared to 137 days in same-party districts.⁵²

The study also identified that a consequence of this partisan maneuvering is that predominantly Black districts in red states have some of the longest vacancies because they are among the most reliably Democratic districts in the country.⁵³ Four of the ten longest House vacancies since 1997 were in predominantly Black districts.⁵⁴ Moreover, the difference between vacancy lengths for plurality Black districts in red and blue states is extreme. Plurality Black districts in Republican-led states have an average vacancy length of 254 days, compared to ninety-two days in Democratic-led states.⁵⁵

Finally, the increased length of vacancies has influenced the House of Representatives as a whole. The House now operates without a full body fairly frequently. In the 107th and 108th Congresses, which began in 2001 and 2003, the House was full twenty-eight percent of the time and fifty-three percent of the time, respectively.⁵⁶ In the 117th Congress, which began in 2021, the House was never full.⁵⁷

One important point to note—while states have the discretion to leave House seats open, they also have the option of setting their own statutory timelines for filling seats. New York recently amended its special election law to require that special elections for House vacancies be held between seventy to eighty days after the governor issues a proclamation, which the governor must do within ten days of the vacancy.⁵⁸ The amendment was preceded by a gubernatorial discretion regime, which resulted in a number of lengthy vacancies in the state and federal legislature.⁵⁹ The New York law is a prime example that, while states are currently driving the trend toward longer vacancies, they also have the ability to reverse course.

B. States’ Varying Policies for Senate Vacancies

While the Constitution mandates filling House vacancies through elections, the Seventeenth Amendment grants states discretion in determining how to fill Senate vacancies. Moreover, it explicitly authorizes state legislatures to empower governors to make temporary appointments. Thus, the data on Senate vacancies focuses on three distinct issues: (1) special election use, (2) special election timelines, and (3) appointment processes.

Broadly speaking, states can be broken into two categories—those that schedule separate special elections to fill vacancies and those that instead wait for the next general election. According to the National Conference of State Legislatures, thirty-six states fill their vacancies at the next regularly scheduled statewide general election.⁶⁰ If the vacancy occurs too close to the next election, six of these states wait until the second subsequent November election to fill the seat.⁶¹ For instance, in California, vacancies that occur within 148 days of a primary are pushed to the second November election.⁶²

In contrast, fourteen states use special elections to fill their vacancies.⁶³ The statutory timing of special elections in these states varies considerably. For example, Vermont sets a maximum timeframe, requiring an election within six months, whereas Washington takes the unusual step of setting a minimum timeframe, requiring an election to occur not less than eighty days following a vacancy.⁶⁴ Other states impose incredibly specific timelines, like Connecticut, which requires special elections for Senate vacancies to be held on the 150th day after the vacancy occurs, excluding weekends.⁶⁵ Some states also provide for a special election to coincide with a regularly scheduled election, but only when vacancies occur within particular time frames. For instance, Rhode Island allows special elections but mandates that vacancies occurring between July 1st and October 1st in even-numbered years be held concurrently with the regularly scheduled general election.⁶⁶

Another key factor in Senate vacancy procedures is the appointment process. The overwhelming majority of states—forty-six out of fifty—allow governors to make interim appointments to fill Senate vacancies while awaiting either the next scheduled election or a special election.⁶⁷ The other four states—North Dakota, Oregon, Wisconsin, and Rhode Island—prohibit such appointments, meaning seats stay vacant until an election is held.⁶⁸ Nine of the appointment states explicitly require the governor to appoint someone from the same party as the senator who vacated the seat.⁶⁹ And five of those nine statutorily mandate that the governor select the same-party appointee from a list of individuals selected by the party in which the vacancy occurred.⁷⁰

The ability to appoint senators to fill vacancies dramatically shortens the amount of time a seat is left open compared to House seats. While the average length of House vacancies in recent years has been around 173 days,⁷¹ Senate vacancies in recent years have generally been filled within a matter of days or weeks.⁷²

Relevant, too, to the appointment discussion is the data on incumbency advantage. In a regular Senate election, the incumbency advantage can be significant. Data from OpenSecrets shows that, over the last forty years, the reelection rate for U.S. senators has scarcely dipped below eighty percent,⁷³ which is remarkable given that public approval of Congress generally hovered well below fifty percent during that period.⁷⁴ It is likely that some of this advantage factors into special elections in which an appointee subsequently runs for a full term against candidates who did not have the advantage of being hand-picked for the job by the governor. Data published by the U.S. Senate shows that, of the nineteen Senate appointees who sought reelection over the last thirty years, fourteen won their reelection campaigns.⁷⁵ During that period ten appointees opted not to run for reelection.⁷⁶ How the number of appointees who opted not to run should factor into understanding the incumbency advantage is unclear; it is possible that some appointees decided not to run because their prospects for election were weak. Nonetheless, it is significant that appointees who ask voters to send them back to the Senate have a seventy-three percent success rate.

One state has apparently accounted for the potential incumbency advantage in its vacancy laws. In Oklahoma, a prospective appointee is required to submit to the secretary of state an oath affirming they will not file as a candidate for the office when it next appears on a ballot.⁷⁷ Oklahoma appears to be the only state that has this statutory requirement for appointees.

C. Areas of Concern in Existing Practice

While this data does not cover every aspect of legislative vacancy procedures, it provides an overview of major issues in this area of law and highlights several issues ripe for reform.

First, the increasing length of vacancies implicates concerns about democratic legitimacy. When constituencies are unrepresented, they lose out on a core tenet of our democratic system: the ability to give input into the laws by which we must all abide. When this occurs for extended periods of time, the extent to which individuals are robbed of this right is multiplied, and the legitimacy of the decisions made by our only partially filled federal legislature is called into question. For majority-Black districts in Republican-led states, a unique consequence of longer vacancies is extended disenfranchisement. In a legal framework that already allows for the partisan manipulation of election laws to the detriment of people of color, the extension of these vacancies is yet another obstacle to effective representation in the federal legislature for these communities.

While Senate vacancies do not tend to last long because they can be filled through appointments,⁷⁸ extended representation by an individual who was not democratically elected implicates similar concerns about democratic legitimacy. Besides putting potentially ineffectual political pressure on the governor, constituents have no way to control who is appointed to represent them. Moreover, appointments give rise to potential gamesmanship problems. Since governors often have few or no restrictions on who they can select, the appointment process can become subject to backroom dealing.⁷⁹

The incumbency advantage further adds to democratic legitimacy concerns because once someone is appointed, they can run for office as an incumbent, potentially giving them a meaningful advantage over other candidates,⁸⁰ and effectively limiting the extent to which the election is a truly open test of candidate quality. Moreover, the incumbency advantage can help to entrench officials in office, meaning once they enter through appointment, they might remain in office for several terms, delaying the opportunity for the electorate to choose a senator without the influence of incumbency bias.

Implicit in the widespread practice of filling vacancies at regularly scheduled elections are also concerns about voter turnout, and by extension, democratic legitimacy. Studies show that special election turnout is typically lower than general election turnout, and voters in special elections are demographically different from general election voters.⁸¹ An analysis of voter registration records from more than fifty special elections between 2022 and 2024 by The New York Times indicates that special election voters are typically older, more partisan, and less persuadable than general election voters.⁸² Elections with higher turnout can be thought of as more legitimate representations of an electorate’s choice between candidates and by extension, policies, allowing the winning candidate to govern with a clearer mandate. When candidates are selected in lower turnout elections, they might be less representative of their constituencies, and the feeling of disconnection from one’s representative might make eligible voters even less inclined to vote in future elections.

While these concerns about turnout in special elections are worth consideration, many general elections also have low turnout. Given the serious concerns about vacancy length and incumbency advantage mentioned above, and the fact that turnout can be addressed in ways that don’t involve delaying elections,⁸³ federal vacancy reform should not prioritize these issues over others, the way many state laws currently seem to do by waiting until regularly scheduled elections to fill seats. Instead, we recommend the reforms below as the best balancing of the principles laid out above.

III. Reforms

This Part proposes reforms to address the concerns laid out in Part II. These proposals are designed to comply with and effectuate the constitutional structure and guiding principles outlined in Part I. Part III.A explains the best procedural mechanisms for reforming vacancy laws, highlighting the advantages of implementing these changes through state laws and state constitutional amendments. Part III.B and III.C suggest reforms for House and Senate special election procedures, including eliminating primaries and reforming statutory timelines for holding elections. Part III.D focuses on reforming Senate appointments through the establishment of a norm of selecting interim senators to serve as temporary caretakers who do not seek election to the office.

A. Legislative Vacancies Should Be Addressed Through State Law Reform

State laws are the best avenue for implementing legislative vacancies reforms. As explained in Part I, the U.S. Constitution dictates the basic structure of federal vacancy procedures—special elections for the House and the possibility of appointments for the Senate—but otherwise leaves the states with considerable discretion over filling federal vacancies.⁸⁴

Some legislators have attempted federal constitutional reform in this area, but the modern difficulty of amending the U.S. Constitution poses a significant barrier to that approach.⁸⁵ For example, multiple constitutional amendments have been proposed to eliminate gubernatorial appointment in favor of special elections to fill Senate vacancies, but none have been successful.⁸⁶ Thus, in the interest of efficiency and effectiveness, attempting to reform legislative vacancy policies through a federal constitutional amendment seems unwise.

Federal statutes are also not the most efficient or effective way to enact legislative vacancy reform. Beyond setting parameters, federal election law statutes⁸⁷ underscore the decentralized election system across the U.S. The overarching power to administer elections is delegated to the states, and while the Constitution provides congressional authority to impose federal election requirements, Congress has largely left the administration of elections to state and local officials.⁸⁸ The longstanding practice of leaving election administration to the states might make Congress reluctant to impede on state authority in this area. Moreover, while the Elections Clause gives Congress authority to override certain state laws related to elections, this authority is likely tempered in the context of special elections due to the explicit delineating of authority to the states in Article I, Section 2, and the Seventeenth Amendment.⁸⁹ Thus, while the federal government retains some authority to regulate legislative vacancies, the additional constitutional parameters for these laws and historic practice make state-level reform a more appropriate approach than crafting and enacting federal legislation.

Courts’ longstanding deference to state authority in this area of law further supports this idea. For example, following the death of New York Senator Robert F. Kennedy on June 6, 1968, New York voters sued to mandate the state fill the vacancy at the November 1968 general election.⁹⁰ At the time, New York law dictated that since the vacancy arose less than 60 days prior to New York’s regular spring primary, an election to fill the vacancy would have to be held at the next general election in an even-numbered year.⁹¹ This meant that the election would not be held until November 1970, more than two years after the start of the vacancy.⁹² The United States District Court for the Western District of New York nonetheless found that the New York law was a “permissible exercise of [the state’s] discretion because it furthers important interests of the state and is in substantial agreement with both the original and current interpretation of the Seventeenth Amendment adopted by most state legislatures.”⁹³

Likewise, in 2010, a federal court emphasized that the Constitution vests discretion in the state executive as to the timing of issuing a proclamation for a special election.⁹⁴ In Fox v. Paterson, residents and voters in the 29th District of New York sought a court order to compel Governor David A. Paterson to call a special election to fill a vacancy in their district’s House seat.⁹⁵ The court authoritatively stated that “a delay of some months in holding a special election to fill a vacancy in a legislative district does not in itself implicate any fundamental rights of the electors within that district.”⁹⁶ Notably, when considering the governor’s stated reasons for extending the length of the vacancy and delaying the special election, the court found that “[i]t is clear that many factors must be considered in deciding the issue of when an election for a vacancy should take place, and these factors are peculiarly within the discretion of the state.”⁹⁷

These cases display the broad authority states have to determine federal legislative vacancy procedures, and, importantly, how much room there is to implement reform through state laws. The fact that some provisions related to federal vacancies may be set out in state constitutions is not a barrier to reform. State constitutions are amended much more frequently than the federal Constitution, meaning the extent to which some constitutional amendments might be required to fully implement the reforms outlined below is less of an obstacle on the state level than the federal level.⁹⁸ Further, many state legislatures outline their more detailed election processes in statutes, so standard statutory enactments would likely be sufficient to implement these reforms in many states.⁹⁹ There is also a practical benefit to implementing these reforms state by state. If states create their own best practices by tailoring the general reforms laid out below to their own needs, each can address the evolution of their own priorities and constituencies.

Therefore, given the difficulty of navigating federal reforms, the longstanding role of states in administering elections, and the benefits of allowing states to refine these general reforms based on their own needs, state constitutions and state statutes offer the most viable avenues to institute changes to federal legislative vacancy procedures.¹⁰⁰

B. Primary Reform

Part III.B focuses on reforming special election primaries. It examines the different reform options as evinced by state practice and relevant case law and identifies potential flaws in existing practices. It concludes that eliminating primaries would be the most effective option to address the concerns and guiding principles highlighted in Part II.

1. Options for Primary Reform

The language of the Seventeenth Amendment contains no reference to primary elections.¹⁰¹ For this reason, federal courts have found that legislative history and case law do not “support[] a conclusion that a state is constitutionally bound to hold a primary for nominations to fill a senatorial vacancy,” even if it holds primaries for general elections.¹⁰² But if a primary is held, the Supreme Court has ruled that the selection process must be in compliance with the general constitutional protections for voting and democratic participation.¹⁰³

States use a variety of procedures for selecting candidates in special elections. Several states hold standard partisan primaries for special elections.¹⁰⁴ Partisan primaries allow voters to directly choose their parties’ candidates for the general election.¹⁰⁵ However, administering standard partisan primaries can exacerbate the efficiency, cost, and timing issues already present with special elections because it effectively requires states to run two elections. As discussed in Part II, datashows a severe increase in the length of congressional vacancies in recent years due to a combination of partisanship and new administrative requirements. These federal administrative requirements, alone, pose serious issues for states looking to hold special elections with primaries in reasonable time frames. The MOVE Act’s requirement that uniformed overseas voters receive ballots at least forty-five days in advance of federal elections means that any timeline for a special election that includes a primary must be at a minimum ninety days long.¹⁰⁶ This ninety-day timeline does not even factor in the time candidates must be given to announce their candidacy after a vacancy occurs or the time election administrators need to print ballots before sending them out. These practical realities of election administration make it difficult to hold a special election primary while ensuring that vacancies are filled quickly, which is particularly imperative for House vacancies, for which governors are unable to appoint interim officials.

Moreover, the democratic legitimacy benefits of holding primaries is less clear in the context of special elections than in general elections because turnout in special elections tends to be so low.¹⁰⁷ Local leaders have indicated that special elections are already difficult for voters to prioritize because they often do not occur during a typical election period, and successfully encouraging turnout in special election primaries is even more difficult than special election generals.¹⁰⁸ This weakens the argument that primaries might better reflect voter choice between candidates, since voters in special election primaries would likely be less representative of the local electorate than voters in general elections.

Another approach to selecting candidates is party selection, where party officials choose candidates for the special election.¹⁰⁹ For example, in New York, political parties select candidates to appear on their ballot in the special election under procedures set forth in party rules.¹¹⁰ Party selection is also used by some states to assist the governor in filling vacant Senate seats. Five out of the ten states that require same-party gubernatorial appointment statutorily mandate that the governor select the appointee from a list of individuals prescribed by the party.¹¹¹ And it is not unusual for these party-selected appointees to go on to run for full terms as party nominees.¹¹² However, there are real concerns regarding the democratic legitimacy and accountability of party selection.¹¹³ For one, it leaves too much room for “insiderism”¹¹⁴ and the prioritization of politics over the people. If parties are the gatekeepers to special election ballots, candidates are perversely incentivized to focus on winning over party officials, rather than the public. Secondly and relatedly, it minimizes public choice, and by extension, accountability. In districts where one party wins most elections, allowing the party to choose one nominee effectively decides the election before anyone goes to the polls, minimizing the opportunity for voters to communicate their preferences.

While these options have some benefits, the drawbacks related to democratic legitimacy and accountability outweigh them. We propose nonpartisan, open general elections as the way to balance efficiency and turnout concerns with the democratic benefits of primary elections.¹¹⁵

2. Proposed Reform: Replace Primaries with Open General Elections with Petition Requirements

States should forego primaries, implement petition requirements, and conduct open general elections.

Open general elections are preferable to special election primaries and party selection. They provide the best solution to the issues about timing and democratic choice created by special election primaries. And rejecting party selection of nominees improves democratic legitimacy and limits the possibility of insiderism and quid pro quo dealings. Further, open general elections allow vacancies to be filled more quickly, reduce work for election administrators, and ease accessibility for candidates seeking to appear on ballots.

Candidates should be required to satisfy a petition requirement in order to qualify for the open general election ballot. A petition requirement helps avoid excessive candidate options for voters while still ensuring sufficient access for political independents. The number of required signatures could be higher than the threshold¹¹⁶ typically used for primaries to prevent a crowded field and alleviate the possibility of a candidate winning with a low plurality of the vote. The prospect of a winning candidate receiving significantly less than a majority of the vote would implicate democratic legitimacy concerns. Increasing the number of signatures to get on a ballot or shortening the time for a candidate to collect them are easy ways to mitigate the potential messiness of an open election while getting the benefits of greater voter choice. The ability to have a meaningful campaign should be a potential consideration for states in developing these policies. For example, the relatively short timelines may impact the number of required signatures where there is less time to collect signatures to get on a ballot.

Ideally, states should use ranked choice voting in open general elections. “Under the ranked choice voting system, voters rank their preferences and the system identifies the candidate preferred by the most voters—sometimes after multiple tabulations.”¹¹⁷ Ranked choice voting would enable voters to select their first choice while ranking other contenders lower, if desired. This eliminates the traditional danger of voting for a third-party candidate and inadvertently hurting a voter’s second preference, thereby giving voters a greater ability to express their preferences at the ballot box. Ranked choice voting has already been integrated in some states for presidential primaries, state primaries, and general elections.¹¹⁸ Importantly, ranked choice voting allows for multiple candidates from major parties and independent candidates to appear on the ballot, offering the greatest combination of democratic choice and administrative efficiency.

C. Special Election Timeline Reforms

Part III.C focuses on reforming special election timelines. It examines the options for reforming the timelines for holding special elections and concludes that imposing a roughly ninety-day timeline for filling both House and Senate vacancies best effectuates the guiding principles highlighted in Part II. But, if a vacancy occurs within 150 days of a general election, the vacancy should be filled at the general election. Additionally, this Part recommends allowing the process of holding special elections to begin before vacancies occur when there is advance notice of an opening, such as in the case of a resignation.

1. Options for Timeline Reform

In some states, governors have unfettered discretion to determine the timing of special elections, which this Report advocates against.¹¹⁹ In theory, imposing few or no constraints provides flexibility and allows governors to respond to the unique considerations raised by each vacancy. This flexibility would also potentially allow for more efficient and tailored use of state resources. For example, if a state is experiencing a budget deficit in a given year, holding an election as inexpensively as possible, regardless of the timeline, might make sense. The governor, as an elected official, might also be more responsive to the public’s concern about the vacancy, filling it more quickly than a statutory timeline might mandate.

But unchecked gubernatorial discretion can result in extended vacancies and political gamesmanship.¹²⁰ As the data shows, when timelines are not mandated, vacancies can be left unfilled for hundreds of days, especially when a district is not aligned with the governor’s political party.¹²¹ Long periods without representation limits constituents’ ability to have input into their government, implicating democratic legitimacy concerns. Additionally, keeping vacancies open for partisan advantage brings political gamesmanship into a core democratic process that should prioritize facilitating voter choice as efficiently as possible.

Democratic legitimacy therefore dictates that federal vacancies should be filled quickly, and constituencies’ partisan affiliations should not impact the governor’s decision about when to fill a seat. We propose a ninety-day timeline for filling vacancies.

2. Proposed Reform: Abbreviated Statutory Timelines and Advanced Planning Authorization

States should enact statutes mandating that writs of election be issued for Senate and House seats within ten days of a vacancy occurring or being announced and that elections be carried out within eighty days of the writ of election being issued, giving a total timeline of roughly ninety days.

As the increasing length of House vacancies shows, giving governors unlimited discretion over when to hold special elections can lead to districts being unrepresented for needlessly long periods of time, particularly in districts with plurality Black populations.¹²² States should instead enact statutory timelines that limit the ability of the governor to delay holding elections for both House and Senate vacancies.

Mandating a maximum ninety-day timeline should allow for relative flexibility in election administration while still substantially shortening the average length of vacancies. Although the data on House vacancies over the last twenty-five years shows an increase in the average length of vacancies, it also shows that some states have been able to hold special elections well within a ninety-day timeline, suggesting such a time frame is attainable.¹²³ Moreover, implementing this recommendation in tandem with the recommendation to hold an open general election—rather than a primary and a general election—eliminates the risk that federal administrative requirements like the MOVE Act would make this timeline unfeasible.¹²⁴ Ultimately, a ninety-day statutory requirement would allow sufficient time for holding an election that complies with federal election administration requirements while cutting the current average vacancy length by nearly half.¹²⁵

This solution offers the best balance between practical concerns about administrability and the principles articulated in Part I. Specifically, imposing statutory timelines would improve democratic legitimacy and accountability by forcing governors to be responsive to constituencies’ need for representation. It would reasonably curtail executive power while still allowing for some flexibility in the executive’s administration of elections by setting an upper time limit rather than an overly strict, statutorily imposed election date. Lastly, it would tackle concerns that governors might use special elections to engage in political gamesmanship by leaving seats in opposing-party districts vacant for longer periods to affect the partisan makeup of Congress.

The downside of holding special elections according to when vacancies occur rather than waiting until the next regular election is that turnout at these elections will likely be lower than if they were held concurrently with regularly scheduled elections. Low turnout election outcomes might be thought of as less representative of the general population, cutting against the democratic legitimacy principle.¹²⁶ However, the interest in ensuring representation outweighs the interest in avoiding low-turnout elections, particularly since turnout can be increased by other election administration tools, such as allowing mail-in or early voting and better promoting public awareness of special elections.¹²⁷

Lastly, while House and Senate elections present different challenges for election administration, a ninety-day timeline is appropriate for both types of vacancies. Because appointment is unavailable for House seats,¹²⁸ the imperative to fill House vacancies quickly is particularly strong. For the Senate, the possibility of appointments somewhat limits concerns about a lack of representation, but creates new issues related to incumbency.¹²⁹ The length of time it takes to hold a special election dictates how long an appointee will be in office, and extending this period likely increases the ability of an appointee to benefit from an incumbency advantage. As explained in further detail in Part III.D, restricting the timing of special elections is an important aspect of ensuring interim appointments do not interfere with the democratic legitimacy of Senate elections. Thus, the ninety-day timeline is an important reform for both House and Senate vacancies.

When vacancies occur within 150 days of a regularly scheduled statewide election, the special election should be held concurrent with that election.

While mandating that vacancies be filled within ninety days is a good general rule for states to follow, when vacancies occur close to regularly scheduled elections, the calculation is somewhat different. In these instances, democratic legitimacy interests and practical concerns about cost and administrability weigh in favor of extending that timeline, despite the negative effect on the vacancy length. For instance, if a vacancy occurs ninety-four days before a regularly scheduled election, a bright-line ninety-day rule would require that a special election be held four days before the regular election. This would be an inefficient use of resources and might also run the risk of confusing voters, which could result in lower turnout and disengagement from the electoral process.¹³⁰

Creating a buffer period of 150 days around regularly scheduled elections eliminates this possibility. Vacancies that occur more than 150 days before the regular election day would be required to follow the ninety-day timeline. Vacancies that occur within 150 days of the regularly scheduled election day would be filled on the regular election day.¹³¹ The benefit of this reform is that elections would never be held on different days within two months of each other, and states would likely be able to save a considerable amount of money by not needing to carry out a separate election. The downside of this reform is that some vacancies might be extended up to 150 days. But this upper limit is still below the current average House vacancy length, and it would still eliminate the cases of extremely long vacancies that exceed 200 days, and sometimes 300 days.¹³²

States should enact statutes authorizing governors to issue writs of election prior to a House or Senate vacancy occurring when it becomes clear that a vacancy is imminent.

In addition to mandating timelines for special elections, states should enact laws authorizing the governor to begin the process of carrying out a special election before the seat is vacant as a way of minimizing the length of vacancies. Some states already allow this practice,¹³³ and some of the notably short vacancies in the House data seem to be a result of these policies.¹³⁴ For example, Oklahoma law allows incumbent officials to file an irrevocable letter of resignation with the secretary of state, at which point the governor is required to set the date of the special election.¹³⁵ Because letters of resignation can be issued in advance of their effective date, it allows the special election process to begin before the seat is empty.¹³⁶

Allowing the process to begin as soon as a lawmaker submits their resignation letter helps ensure that seats are filled as efficiently as possible. Moreover, combining this reform with the ninety-day timeline requirement would potentially eliminate some vacancy periods altogether. To illustrate, former New York Representative Brian Higgins announced in November 2023 that he would resign from the House, but did not leave office until February 2024, at which point the New York governor issued a proclamation for a special election to be held in late April 2024.¹³⁷ Had New York law included an authorization to begin carrying out the special election once his resignation was announced, rather than once it was effective, it is possible the vacancy period could have been reduced to a handful of weeks, rather than three months.

The few legal challenges to these laws have been unsuccessful.¹³⁸ The core challenge rests on the language in Article I and the Seventeenth Amendment authorizing state executives to call elections when vacancies “happen.”¹³⁹ In a recent federal district court case, an Oklahoma resident challenged the state’s anticipated vacancy law following former U.S. Senator James Inhofe’s invocation of the procedure in 2022.¹⁴⁰ The court granted the state’s motion for summary judgment on the grounds that the individual did not have standing,¹⁴¹ but decided to discuss the merits of the case nonetheless.¹⁴²

The plaintiff argued that the Seventeenth Amendment’s phrase “[w]hen vacancies happen” would have been understood at the time of enactment as referring to the point when an office becomes unoccupied.¹⁴³ The court rejected this as too narrow a reading of the Amendment, which has long been understood to grant states “a measure of control and discretion over vacancy elections.”¹⁴⁴ This understanding of the breadth of authority granted by the Seventeenth Amendment was further supported by the Elections Clause in Article I, Section 4, which explicitly gives states control over the times, places, and manner of holding elections absent a federal override.¹⁴⁵ The court concluded that the discretion granted to the states to design their special election procedures, combined with the lack of any conflicting direction in the Seventeenth Amendment, was sufficient to support the anticipated vacancies law.¹⁴⁶ Moreover, the court saw the anticipated vacancies procedure as consistent with the principal purpose of the Seventeenth Amendment—the direct election of senators by the people.¹⁴⁷

The district court’s comprehensive rejection of the plaintiff’s arguments is in line with other case law pertaining to the Seventeenth Amendment and Article I, which routinely emphasizes the grant of discretion to states and rejects arguments that are not explicitly supported by the Constitution’s text.¹⁴⁸ This makes sense given the broad language used in the text: “when vacancies happen” could just as easily be construed to denote a sense of urgency rather than a requirement that states wait to initiate their elections. Given the lack of any clear prohibition on these types of laws in the Constitution, and the longstanding deference to state special election regimes, these and other constitutional challenges are unlikely to pose a threat to states that enact these reforms.

D. Senate Specific Reform: Appointments

Part III.D analyzes reform options for United States Senate appointments. It concludes that governors should institute a normative practice of appointing a caretaker to fill the vacant seat, rather than selecting an appointee who will utilize the position to advantage themselves in the next election.

1. Options for Senate Appointment Reform

One option for reforming the Senate appointment system is to simply eliminate interim appointments. While there has been bipartisan support in Congress for eliminating the appointment of senators altogether,¹⁴⁹ the proposals were ultimately unsuccessful.¹⁵⁰ The multitude of proposals, however, evinces that this area is prime for reform. While eliminating appointments altogether would certainly obviate any concerns about incumbency advantage, it would also leave constituencies without a senator during vacancies, limiting their ability to influence the federal legislative debate.

Another Senate appointment reform that has been adopted by states is the same-party requirement discussed in Part II. These laws require the governor to select an interim senator from the same party as the senator who vacated the seat.¹⁵¹ Some even go so far as to require the governor to select an interim senator from a list of candidates created by the political party of the vacating senator.¹⁵² For example, a Hawaii law requires the governor to choose an appointee from three names recommended by the senator’s political party.¹⁵³ Maryland,¹⁵⁴ Utah,¹⁵⁵ West Virginia,¹⁵⁶ and Wyoming¹⁵⁷ have similar statutes to Hawaii’s same party-provided provision.¹⁵⁸

These statutes are relatively new, and they pose some legitimate constitutional concerns. Two leading scholars diverge in their reading of the Seventeenth Amendment’s grant of power to state legislatures. The Seventeenth Amendment states that “[w]hen 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.”¹⁵⁹ Professor Vikram Amar has suggested that the use of “empower” does not mean “require,”¹⁶⁰ arguing that state statutes restricting governors’ discretion in appointing temporary senators are unconstitutional.¹⁶¹ Conversely, Professor Sanford Levinson argues instead the word “empower” would allow state legislatures “to limit the appointment power with reasonable conditions designed to prevent what the legislature can reasonably believe would be an abuse of discretionary power.”¹⁶² Still others side with Amar’s argument and conclude: “the start of the proviso should be read to permit state legislatures to empower but not compel the state executives to make appointments to the Senate in the event that a vacancy happens; and the legislature’s choice to do so does not include a power to micromanage the appointment.”¹⁶³ Thus, while courts have yet to weigh in on whose interpretation is correct, the possibility of a viable constitutional challenge to these laws is real.

Another option for appointment reform is to require senators and representatives to identify their own successors in advance. This approach would be similar to a proposal for dealing with mass vacancies in the House of Representatives and the Senate.¹⁶⁴ The bill was intended to address two interrelated concerns—mass vacancies “in the event [of] catastrophe” and the democratic need to elect representatives.¹⁶⁵ Under this proposal, senators must create a list of designees in case of emergency;¹⁶⁶ in the case of such catastrophe resulting in incapacity, the Vice President or President Pro Tempore of the Senate then will “immediately fill the vacancies with individuals from the most recent lists of designees”;¹⁶⁷ and finally once the Senate seat has been filled by designation, the executive authority of the State affected shall issue a writ of election, and the special election must be held as soon as possible after the individual is designated.¹⁶⁸

Drawing on this proposal, state legislatures could attempt to use the power of the Seventeenth Amendment to require that vacancies be filled via gubernatorial appointment from a list created by the incumbent. Under a broad understanding of the word “empower,” the state legislatures would empower the governor to consider temporary appointments proposed by the senators themselves. The legislatures would set parameters for the senators to list options for interim senators in case of a vacancy in advance. This option would potentially add democratic legitimacy to the process because the replacement senator would have been selected by the person voters initially chose to occupy the Senate seat. But this proposal would remove flexibility to select an appointee who is the correct fit for the moment in time when a vacancy occurs. Additionally, a state law limiting the governor’s discretion to select appointees could face constitutional challenges.

Lastly, in 2021, Oklahoma enacted a creative law related to Senate appointments apparently aimed at curbing the incumbency advantage of appointed senators.¹⁶⁹ Under the new law, the appointee must have been a member of the same party as the prior senator for at least five years and must also submit an oath to the secretary of state “affirming that [they] will not file as a candidate for the office when it next appears on the ballot.”¹⁷⁰ The bill sponsor said he proposed the law to combat the “insider” nature of the appointment process.¹⁷¹ The Oklahoma reform is a useful model for reforming Senate appointments. Interim appointees have the power to influence national policy and the great responsibility of representing the entire state electorate. Considering this unique role, state governors should select appointees who will focus on governing and adequately representing the constituency rather than focusing on the next election. This Report’s proposal differs from the Oklahoma statute in one critical way: rather than legally requiring an oath from interim appointees, we seek to establish a normative value and best practice of appointing an individual to serve as a caretaker when Senate vacancies occur.

2. Proposed Reform: Executives and State Legislatures Should Prioritize the Caretaker Nature of Interim Appointments

Governors should select appointees who will serve in the Senate in a caretaker capacity, rather than utilizing the appointment to advantage themselves in the next election.

Oklahoma’s statutory embrace of the caretaker role lends credence to the idea that interim senators should take seriously the responsibility of the seat as well as the people they represent. Election to office should not be an appointee’s main priority. Governors should prioritize the caretaker role in making Senate appointments, rather than selecting appointees who have an eye towards the next election.

Our proposal to require that special elections occur approximately ninety days after most vacancies might encourage governors to appoint caretaker senators. If a special election would need to occur within three months of an appointee taking office, it would be challenging for the newly appointed senator to serve in the Senate and campaign simultaneously. Governors might seek to appoint someone who is positioned to effectively represent the state in the Senate, while allowing someone else to wage a vigorous campaign to win the seat on a more permanent basis.

The vision of a caretaker role, while not a new concept, is uniquely suitable for Senate appointments. In discussions surrounding vice presidential vacancies, which are filled by appointment, the concept of appointing a caretaker was rejected because of a belief that the vice president needed to be ready at all times to assume the presidency if needed.¹⁷² But the issues that made the caretaker idea inappropriate for the vice presidency actually weigh in favor of establishing such a norm for Senate appointments.¹⁷³ For example, officials appointed to fill vacancies in the vice presidency must be willing to serve for the remainder of the term and as the acting president, should the need arise.¹⁷⁴ But Senate appointees from most states merely serve until a special election can be held, and they are not in a position to potentially discharge the powers and duties of the presidency, which involves significantly more unilateral responsibility. Moreover, some appointees already embrace the temporary nature of appointments. A multitude of figures, of their own volition, have chosen not to seek election after their Senate appointment.¹⁷⁵

Our reform would not prohibit appointees from running or even require them to pledge not to do so. Instead, we advocate for governors to prioritize the caretaker role and the benefits it provides. This variation on Oklahoma’s law avoids potentially tricky constitutional issues, such as concerns that the requirement that the appointee take an oath to serve only as a caretaker would impermissibly create additional qualifications for office. An analysis of the Oklahoma statute reinforces the idea to instill prioritizing the caretaker role as a normative practice instead of a legal requirement. Statutorily mandating any action, whether a ban or a pledge, raises First Amendment and federalism issues.¹⁷⁶

a. Legal Analysis of Instilling Normative Practices for the Interim Caretaker Role

The Oklahoma statute mandates interim senators issue a non-binding oath to not run in the next election which is submitted to the public record and published by the secretary of state.¹⁷⁷ The bill’s sponsor noted that while more binding mechanisms were considered, he was concerned with the constitutionality of such provisions.¹⁷⁸ While technically non-binding in that there are no apparent legal repercussions for violating the oath, there is still considerable constitutional concern with (1) the government compelling speech and (2) states adding potential qualifications for members of Congress.

First, the oath requirement potentially raises issues under the First Amendment. While the Supreme Court has not addressed the type of oath mandated by the Oklahoma statute, it has in a variety of contexts struck down oaths required for public employment and related opportunities as unconstitutional. While general oaths to support the Constitution have been upheld, the Supreme Court has long made clear that

neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First [] Amendment[.] . . . Nor may employment be conditioned on an oath that one has not engaged, or will not engage, in protected speech activities such as the following: criticizing institutions of government; discussing political doctrine that approves the overthrow of certain forms of government; and supporting candidates for political office. Employment may not be conditioned on an oath denying past, or abjuring future, associational activities within constitutional protection.¹⁷⁹

Additionally, the Court established in Elrod v. Burns¹⁸⁰ that public employees may not be dismissed because of their affiliation with a political party.¹⁸¹ It should be noted that in Oklahoma, the state is partly restricting party affiliation, but the federal government is the employer. “[C]ompetition in ideas and governmental policies is at the core of our electoral process.”¹⁸² The Oklahoma statute potentially presents a gray area, somewhere between a permissible oath to uphold the Constitution and an impermissible conditioning of employment on political activities, such as running in the next election. But the fact that it could reasonably be construed as a dismissal of an individual for speaking and associating with their candidacy in the next election counsels avoiding an oath as a legal requirement for appointees.

Additionally, registration and publication with the secretary of state’s office may be found to have a deterrent effect on public participation. As established by Lamont v. Postmaster General,¹⁸³ the government cannot impose an affirmative obligation that has a deterrent effect, particularly for those in sensitive positions.¹⁸⁴ In Lamont, the Supreme Court struck down a statute that required the Post Office to detain and destroy unsealed foreign mail that was determined to be communist political propaganda unless the addressee affirmatively told the Office they wanted the mail.¹⁸⁵ The Post Office then maintained a list of those “manifesting a desire to receive ‘communist political propaganda.’”¹⁸⁶ The statute was unconstitutional because it “require[d] an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressees[’] First Amendment rights.”¹⁸⁷ Similarly, in Thomas v. Collins,¹⁸⁸ the Court invalidated a Texas statute that required paid labor union organizers to register with the secretary of state and secure an organizer’s card before soliciting members as a violation of the First Amendment.¹⁸⁹ The steps prior to serving one’s constituency—in Oklahoma’s statute, submission of the oath to the secretary of state—may be seen as a hindrance to the freedom of association.

Oklahoma’s requirement that an interim senator swear to not run in the next election also runs the risk of being struck down as an unconstitutional state-imposed qualification for congressional service.¹⁹⁰ Qualifications are viewed broadly—“[c]ourts have struck down state-imposed qualifications in the form of term limits, district residency requirements, loyalty oath requirements, and restrictions on those convicted of felonies.”¹⁹¹ In U.S. Term Limits, Inc. v. Thornton, the Supreme Court struck down an amendment to the Arkansas Constitution that precluded otherwise eligible congressional candidates from appearing on the general election ballot if they already served three terms in the House of Representatives or two terms in the Senate.¹⁹² The ballot restriction was found to be an indirect attempt to impose term limits on congressional incumbents, violating the Qualifications Clauses in Article I of the Constitution.¹⁹³ The Court held that “the qualifications for service in Congress set forth in the text of the Constitution are ‘fixed,’” in that Congress may not supplement them.¹⁹⁴ The Constitution is the exclusive source of congressional qualifications,¹⁹⁵ and the power to add qualifications “is not within the ‘original powers’ of the States, and thus is not reserved to the States by the Tenth Amendment.”¹⁹⁶

Like Thornton, Oklahoma’s statute, requiring the interim senator to take an oath not run in the subsequent special election, may be viewed as a preclusion of individuals who have served as interim senator. This type of restriction does not fall within a state’s power to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives” within the meaning of Article I, § 4, cl. 1.¹⁹⁷ Most recently, relying on Thornton, the Supreme Court invalidated a Missouri law that identified congressional candidates who had disregarded voters’ instruction on term limits or declined to pledge support for term limits on primary and general ballots.¹⁹⁸ Restricting an individual’s potential candidacy for the U.S. Senate—even as they serve in office in an interim capacity—may be viewed as a state-added qualification for a congressional seat.

While the cases discussed here are not directly on point, they present compelling rationales for steering clear of imposing additional restrictions on political candidates and instead implementing the caretaker approach to Senate appointments as a norm instead of as a requirement.

b. Selecting the Ideal Caretaker

Instituting a norm that governors select caretakers has a strong likelihood of limiting political gamesmanship and insider politics in the Senate appointment process. This boundary is critical to understanding why the caretaker role is so important, and how the ideal candidate can shape their interim position. Because the caretaker role is filled on an interim basis, it does not mitigate all political gamesmanship; however, the short timeline discussed above mitigates the harm of some of these issues. There is limited opportunity for insider control. Thus, for a relatively short period, the impact on subsequent elections seems limited, even if the “seat filler” is a threat.¹⁹⁹

Governors should select caretakers who have had distinguished careers in public service and who are willing to return to serving their community temporarily.²⁰⁰ Research suggests that, currently, “governors are no more likely to appoint potential senators who have experience in politics than those who do not.”²⁰¹ But preferably temporary replacements would not need to learn on the job and could focus on representing the state in the Senate. By prioritizing the quality of representation, the governor would readily fulfill an “immediate need to fill the seat with someone who has experience on the job.”²⁰² Moreover, someone late in their career or retired would likely be less eager to run in the next election. Rather than utilizing the appointment as a way to advantage themselves in the next election, this could ensure continuity while engaging quality candidates that may otherwise not run for office.

This reform aims to establish a political norm rather than imposing a legally mandated requirement. Putting aside concerns about constitutionality, there are three critical reasons for favoring the establishment of a norm rather than a mandate: (1) it opens up a broader selection of potential caretakers, (2) data suggests same-party mandates are unnecessary, and (3) the shorter election timeline recommended inPart III.C acts as a deterrent for those seeking to utilize an appointment for political gain.

First, while norms-based reforms may be difficult to implement, mandating a same-party appointment could limit the number of candidates who would be willing and able to fill a vacant Senate seat. If, for instance, the best person to temporarily fill a Senate seat is someone not registered with a party, that should not prohibit the governor from appointing them. Second, it is unclear that governors need many checks in this area. As democratically elected officials, governors are already somewhat constrained actors, and research shows that they tend to appoint senators who fall closest not to their own ideology, but to the ideology of the median voter in the state.²⁰³ In the absence of any indication that state executives are using appointments to subvert the will of the public, it may not be necessary to impose partisan requirements on these decisions. Lastly, the faster election timeline recommended inPart III.C works in tandem with the caretaker idea because it makes politically motivated appointments less appealing to candidates and to state parties. Were an appointee intent on running in the special election, the need to be in Washington, D.C. for regular Senate votes would make it quite difficult to carry out a successful campaign in their home state in under three months. Their ability to get in front of donors and voters would be circumscribed, and parties would be incentivized to support someone else who had the time to campaign effectively.

A potential counterargument to this proposal is that interim appointments allow constituencies to test out politicians on a short-term basis. Communities may lose the possible advantage of understanding a politician before having to decide whether they should elect them. While this might be an opportunity cost of this reform, it is outweighed by the ability of the electorate to vote in the special election without a candidate-appointee skewing the field.

This proposal would enhance democratic legitimacy and accountability. A caretaker would represent the electorate and ensure continuity, minimizing vacancies and supporting the state. They would serve as an accountable individual to cast votes in line with the will of the electorate, without limiting voters’ ability to choose freely who should next fill the seat.

Conclusion

This Report focuses on the laws that govern federal legislative vacancies and their potential impact on our electoral system. Data shows that vacancies are increasing in length and concerns about entrenchment are valid. This has damaging effects on our democracy and equitable representation of the electorate. We propose a slate of reforms intended to mitigate these problems. Federal legislative vacancy reform should ensure democratic legitimacy and quality representation. Our recommendations on primaries, special election administration, and the U.S. Senate appointment process promote democratic values, while still accounting for practical concerns related to administrability of special elections.

* This Report was researched and written by students in Fordham University School of Law’s Rule of Law Clinic under the supervision of Dean Emeritus John D. Feerick and Professor John Rogan during the Spring 2024 semester. The Clinic gratefully acknowledges the following individuals for sharing their knowledge and expertise during this Report’s development: Professor Jerry Goldfeder, Fordham University School of Law; David Schwartz, Gotham Government Relations; Professor Quinn Yeargain, Michigan State University College of Law; and Chuck Apelian, President of Clinton Democratic Club of Northeast Queens, Commissioner of NYC Civic Engagement, Vice Chairperson of Community Board Seven.
** Fordham University School of Law, Class of 2024.
*** Fordham University School of Law, Class of 2024.
**** J.D. Candidate, Fordham University School of Law, 2025.

References:

1
Tyler Ritchie, Short of A Full House: The Increasing Length of Vacancies in the U.S. House of Representatives, 1997–2021, 56 Colum. J.L. & Soc. Probs. 397, 422 (2023).
2
Id.
3
Appointed Senators (1913–Present), U.S. Senate, https://www.senate.gov/senators/AppointedSenators.htm [https://perma.cc/NUF9-3VY2] (last visited Oct. 18, 2024).
4
U.S. Const. art. I, § 2, cl. 4.
5
U.S. Const. art. I, § 4, cl. 1.
6
2 U.S.C. § 8.
7
Thomas H. Neale, Cong. Rsch. Serv., IF11722, House of Representatives Vacancies: How Are They Filled? (2021).
8
Id.
9
U.S. Const. amend. XVII.
10
Tyler Yeargain, The Legal History of State Legislative Vacancies and Temporary Appointments, 28 J.L. & Pol’y 564, 567 (2020).
11
Id. at 567–68.
12
See About Electing and Appointing Senators: Filling Vacancies, U.S. Senate, https://www.senate.gov/about/origins-foundations/electing-appointing-senators/vacancies.htm [https://perma.cc/N6GG-B5Y9] (last visited Oct. 18, 2024).
13
U.S. Const. art. I, § 3, cl. 1; see also id.
14
U.S. Senate, supra note 12.
15
See Ari L. Tran, Gubernatorial Discretion Not Advised: The Case for Special Elections to Fill Senate Vacancies, 76 Brook. L. Rev. 1201, 1208–10 (2011).
16
Id. at 1208–09; Ralph A. Rossum, The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment, 36 San Diego L. Rev. 671, 705 (1999).
17
Tran, supra note 15, at 1208–09; Rossum, supra note 16, at 705.
18
Tran, supra note 15, at 1210; Rossum, supra note 16, at 710. As of 1910, twenty-seven of the thirty-one states then required to call a convention had submitted petitions to Congress. C.H. Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment 149 (1995). However, before the requirements to call a convention could be satisfied, a new slate of reform-minded U.S. senators was elected, and they took on the effort at the federal level, eliminating the need for the states to call what would have been the first federal constitutional convention since the founding. Id. at 149–50.
19
See Tran, supra note 15, at 1211.
20
See id.
21
Id.
22
See generally David G. Phillips, The Treason of the Senate, Cosmopolitan (1906) (fictionalized series of articles portraying senators as pawns of industrialists and financiers to galvanize public support for reform).
23
See Admits $1,000 Bribe for a Lorimer Vote, N.Y. Times, May 8, 1910, at 7, https://timesmachine.nytimes.com/timesmachine/1910/05/08/102038821.html?pageNumber=7 [https://perma.cc/X8PE-ABV3].
24
See Senator Stephenson Under Bribe Charge, N.Y. Times, Jan. 11, 1911, at 3, https://timesmachine.nytimes.com/timesmachine/1911/01/12/104817197.html?pageNumber=3 [https://perma.cc/AB3Q-K4A5].
25
The Election Case of Isaac Stephenson of Wisconsin (1912),U.S. Senate, https://www.senate.gov/about/origins-foundations/electing-appointing-senators/contested-senate-elections/096Isaac_Stephenson.htm [https://perma.cc/XT53-DH82] [hereinafter Case of Stephenson].
26
See id.
27
See Tran, supra note 15, at 1214. A subsequent Congress eventually ousted Senator Lorimer after retrying him. See id.
28
See id.
29
Id. at 1210.
30
Id.
31
Yeargain, supra note 10, at 574; Mass. Const. art. XII (proposed 1778).
32
Yeargain, supra note 10, at 575. New Hampshire and Maine copied this process. Id.
33
Id. at 573–74; Ky. Const. of 1792, art. I, §§ 15, 25; Md. Const. of 1776, art. II.
34
See U.S. Const. art. I, § 4, cl. 1.
35
See id.
36
U.S. Const. art. I, § 2, cl. 4; U.S. Const. amend. XVII.
37
U.S. Const. art. I, § 2, cl. 4.
38
See, e.g.,N.Y. Pub. Off. Law § 42.
39
Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 170 (2016) (noting that one delegate at the Constitutional Convention referred to the popular election of House members as the “cornerstone” of our entire system).
40
For example, Kentucky law gives the governor the authority to select special election dates. Ky. Rev. Stat. Ann. § 118.720 (West 2024) (“When an election is to be held to fill a vacancy in the office of representative in Congress, or in the office of United States Senator, a proclamation therefor, in lieu of a writ of election, shall be issued and signed by the Governor and shall be directed to the proper sheriffs.”).
41
Ritchie, supra note 1.
42
Id.
43
Id.
44
Nathaniel Rakich, Why Some House Districts Won’t Have A Representative For Almost A Year, FiveThirtyEight (May 25, 2021, 6:00 AM), https://fivethirtyeight.com/features/why-some-house-districts-wont-have-a-representative-for-almost-a-year [https://perma.cc/N4AH-ZSSH].
45
52 U.S.C. § 20302 (2009). Among other things, the law requires states to transmit ballots to uniformed overseas voters at least forty-five days before an election. Id. This means that when states hold elections that include primaries, at minimum, the timeline to hold the election must be at least ninety days, to comply with the ballot requirements in the MOVE Act. While this practical requirement likely contributes to increased election timelines, it does not explain why some vacancies have been left unfilled for hundreds of days. See, e.g.,Rakich, supra note 44 (highlighting Michigan’s 13th Congressional district’s 359-day vacancy).
46
See Rakich, supra note 44.
47
Id.
48
Id.
49
Id.
50
Id.
51
Id.
52
Id.
53
Id.
54
Id.
55
Id.
56
Geoffrey Skelley, The House Is About To Have 435 Members. That’s Pretty Rare., FiveThirtyEight (Mar. 7, 2023, 6:00 AM), https://fivethirtyeight.com/features/house-435-members-pretty-rare [https://perma.cc/RS33-BFJQ].
57
Id.
58
N.Y. Pub. Off. Law § 42.
59
Marina Villeneuve, Capitol Watch: Cuomo Again Drags Feet on Special Election, Associated Press (Dec. 7, 2019), https://apnews.com/general-news-f9adf56e6944e58141e7e0a925678573 [https://perma.cc/Y9AP-6NKY].
60
Vacancies in the United States Senate, Nat’l Conf. of State Legislatures, https://www.ncsl.org/elections-and-campaigns/vacancies-in-the-united-states-senate (last updated Sept. 25, 2023) (identifying the states that wait until the next general election as Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming). Many of these states also utilize temporary appointments in the interim. Id.
61
Id. (identifying California, Hawaii, Minnesota, New Jersey, New York, and Virginia as states that will push an election for a vacancy to the second November election if it occurs within a certain time frame of the first November election following the vacancy).
62
Id.
63
Id. (identifying Alabama, Alaska, Connecticut, Louisiana, Massachusetts, Mississippi, North Dakota, Oklahoma, Oregon, Rhode Island, Texas, Vermont, Washington, and Wisconsin as the states that use special elections).
64
Id.
65
Conn. Gen. Stat. § 9-211 (2009).
66
See Nat’l Conf. of State Legislatures, supra note 60.
67
Id.
68
Id.
69
Id.
70
Thomas H. Neale, Cong. Rsch. Serv., IF11907, U.S. Senate Vacancies: How Are They Filled? (2024) (identifying Hawaii, Utah, Maryland, West Virginia, and Wyoming).
71
See supra Part II.A.
72
See, e.g., Amy B. Wang, Ex-Neb. Governor Pete Ricketts Appointed to Replace Sen. Ben Sasse, Wash. Post (Jan. 12, 2023, 11:10 AM), https://www.washingtonpost.com/politics/2023/01/12/nebraska-senate-ricketts-sasse-replacement [https://perma.cc/7HYM-D6H5].
73
Reelection Rates Over the Years, OpenSecrets, https://www.opensecrets.org/elections-overview/reelection-rates [https://perma.cc/HE9J-DD4H] (last visited Oct. 18, 2024).
74
Congress and the Public, Gallup, https://news.gallup.com/poll/1600/congress-public.aspx [https://perma.cc/5EQR-FFJ5] (last visited Oct. 18, 2024).
75
U.S. Senate, supra note 3.
76
Id.
77
See Okla. Stat. tit. 51 § 10 (2021). This statute and its legislative history are discussed further in-depth infra Part III.D.
78
See supra note 72 and accompanying text.
79
See, e.g., Monica Davey & Jack Healy, Illinois Governor Charged in Scheme to Sell Obama’s Seat, N.Y. Times (Dec. 9, 2008), https://www.nytimes.com/2008/12/09/us/politics/10Illinois.html [https://perma.cc/2QFY-B3EK]; FBI: Illinois Governor Sought To “Sell” Obama’s Senate Seat, ABC News (Dec. 9, 2008), https://abcnews.go.com/Blotter/ConductUnbecoming/story?id=6424985&page=1 [https://perma.cc/KUR5-8QDY].
80
See generally Robert S. Erikson, The Incumbency Advantage in Congressional Elections, 3 Polity 395 (1971); Stephen Ansolabehere & James M. Snyder, Jr., The Incumbency Advantage in U.S. Elections: An Analysis of State and Federal Offices, 1942–2000, 1 Election L.J.315 (2002); Scott Ashworth & Ethan Bueno de Mesquita, Electoral Selection, Strategic Challenger Entry, and the Incumbency Advantage, 70 J. Pol. 1006–1025 (2008).
81
Nate Cohn, Turnout Data Reveals the Core of Democrats’ Success in Special Elections, N.Y. Times (Feb. 3, 2024), https://www.nytimes.com/2024/02/02/upshot/special-elections-democrats-turnout-2024.html [https://perma.cc/DF8N-YMKQ].
82
Id. (“In the typical special election, half of voters are 65 and over. Nearly every special election voter has participated in a recent primary election. Almost everyone is a registered Democrat or Republican. Young voters, irregular voters and independent voters are much scarcer. The nonwhite share of voters is typically smaller. A general election poll with these demographic characteristics would be laughed out of the room.”).
83
See Increasing Voter Participation in America: Policies to Drive Participation and Make Voting More Convenient, Ctr. for Am. Progress (July 11, 2018), https://www.americanprogress.org/article/increasing-voter-participation-america [https://perma.cc/7NA8-J6JQ].
84
See supra Part I.
85
See, e.g., Proposing an Amendment to the Constitution of the United States Relative to the Election of Senators, H.R.J. Res. 57, 118th Cong. (2023).
86
Proposing an Amendment to the Constitution of the United States Relative to the Election of Senators, S.J. Res. 7, 111th Cong. (2009); Proposing an Amendment to the Constitution of the United States Relative to the Election of Senators, H.R.J. Res. 21, 111th Cong. (2009); Proposing an Amendment to the Constitution of the United States to Temporarily Fill Mass Vacancies in the House of Representatives and the Senate and to Preserve the Right of the People to Elect their Representatives and Senators in Congress, H.R.J. Res 52, 111th Cong. (2009); Proposing an Amendment to the Constitution of the United States Relative to the Election of Senators, H.R.J. Res. 57, 118th Cong. (2023); Daniel T. Shedd, Money for Senate Seats and Other Seventeenth Amendment Politicking: How to Amend the Constitution to Prevent Political Scandal During the Filling of Senate Vacancies, 79 Geo. Wash. L. Rev. 960 (2011).
87
From the Civil Rights Act and the Voting Rights Act to the Uniformed and Overseas Citizens Absentee Voting Actand the MOVE Act of 2009, federal election law has evolved to better protect Americans’ right to vote and enable the exercise of that right while still leaving the majority of election administration to the states. See, e.g.,52 U.S.C. § 10301; 52 U.S.C. §§ 20301–11; Military and Overseas Voter Empowerment Act, Pub. L. No. 111–84, § 575, 123 Stat. 2190, 2318 (2009). Additionally, the Help America Vote Act (“HAVA”) of 2002 instituted new mandatory minimum standards for states in key election administration areas and authorized the federal funding of elections to meet the standards and improve administration. Help America Vote Act of 2002, 42 U.S.C. §§ 15301–15545 (recodified at 52 U.S.C. §§ 20901–21145). It also created the U.S. Election Assistance Commission (EAC), which assists states in complying with HAVA and adopting minimum standards on voter education, registration, and ballots. Id.
88
Election Administration at State and Local Levels, Nat’l Conf. of State Legislatures, https://www.ncsl.org/elections-and-campaigns/election-administration-at-state-and-local-levels [https://perma.cc/J5K3-B23Z] (last updated Dec. 22, 2023).
89
See U.S. Const. amend. XVII (“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.”); U.S. Const. art. 1, § 2, cl. 4 (“When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”).
90
Valenti v. Rockefeller, 292 F. Supp. 851, 853 (W.D.N.Y. 1968), aff’d, 393 U.S. 405 (1969), and aff’d sub nom. Phillips v. Rockefeller, 393 U.S. 406 (1969), and aff’d sub nom. Backer v. Rockefeller, 393 U.S. 404 (1969).
91
Id.
92
Id.
93
Id. at 866–67.
94
Fox v. Paterson, 715 F. Supp. 2d 431, 440 (W.D.N.Y. 2010).
95
Id. at 432–33.
96
Id. at 437.
97
Id. at 441 (citation omitted).
98
See John Dinan, Constitutional Amendment Processes in the 50 States, State Court Report, Brennan Ctr. for Just. (July 24, 2023), https://statecourtreport.org/our-work/analysis-opinion/constitutional-amendment-processes-50-states [https://perma.cc/PA9A-6VW2] (noting that while the U.S. Constitution has been amended only twenty-seven times, the fifty state constitutions have been amended around 7,000 times).
99
See, e.g., N.Y. Pub. Off. Law § 42.
100
Justin Weinstein-Tull, Election Law Federalism,114 Mich. L. Rev. 747, 793 (2016) (“All three levels of government—federal, state, and local—have a stake in administering elections. . . . [T]he most effective enforcement of the federal election statutes depends on finding the best blend of federal, state, and local involvement in enforcing the statutes.”).
101
U.S. Const. amend. XVII.
102
Trinsey v. Comonwealth of Pa., 941 F.2d 224, 234 (3d Cir. 1991).
103
United States v. Classic, 313 U.S. 299, 318 (1941) (“Where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary, is likewise included in the right protected by Article I, [§] 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative.”).
104
See, e.g.,Vt. Stat. Ann. tit. 17 § 2352 (2024).
105
Jackson Herrick, Partisan vs. Nonpartisan Primaries: How Primary Structure Influences Choice Sets and Election Outcomes (May 14, 2020) (B.A. thesis, Amherst College).
106
Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84, § 579, 123 Stat. 2322 (2009).
107
Cohn, supra note 81.
108
Video Interview with Chuck Apelian, Former Comm’r. of NYC Civic Engagement (Mar. 13, 2024) (on file with author) (“Start with voter apathy in general for elections. Super apathy for primary, super apathy when you get to a special election. It’s just not a part of people’s lives.”).
109
See Jerry H. Goldfeder, Goldfeder’s Modern Election Law: Ballot Access in New York 125 (2012).
110
N.Y. Elec. Law § 6-114 (McKinney 2024).
111
Thomas H. Neale, Cong. Rsch. Serv., IF11907, U.S. Senate Vacancies: How Are They Filled? (2024).
112
See supra text accompanying note 75.
113
See, e.g.,Nicholas Fandos, Finding George Santos’s Replacement Is Proving Difficult for Republicans, N.Y. Times (Dec. 8, 2023), https://www.nytimes.com/2023/12/08/nyregion/santos-republican-candidates.html [https://perma.cc/36MQ-TQD9]; Trish Zornio, Colorado’s Vacancy Committees are Undemocratic. But What’s the Alternative?, Colo. Sun (Jan. 8, 2024), https://coloradosun.com/2024/01/08/colorado-vacancy-legislature-opinion-zornio [https://perma.cc/M5FR-EUC4]; Ovetta Wiggins, A Renewed Push to Change How Vacancies are Filled in Md. Legislature, Wash. Post (Nov. 26, 2023 4:36 PM), https://www.washingtonpost.com/dc-md-va/2023/11/26/appointments-maryland-general-assembly [https://perma.cc/3S5T-DH3S]; Joe Sonka, Here’s How Kentucky’s Law Works for Filling U.S. Senate Vacancies, Louisville Courier J. (July 28, 2023), https://www.courier-journal.com/story/news/politics/2023/07/28/heres-how-kentuckys-law-works-for-filling-u-s-senate-vacancies/70484359007 [https://perma.cc/8BUY-3FG4].
114
See Cynthia Fernandez, How Political Party Insiders—Not Voters—Dictate Pa. Special Election Candidates, Spotlight PA (Feb. 24, 2020), https://www.spotlightpa.org/news/2020/02/pennsylvania-legislature-retirements-resignations-special-elections [https://perma.cc/5977-8WUK].
115
See Part III.B.2 for further discussion.
116
See, e.g., N.Y. Elec. Law § 6 (McKinney 2024) (outlining requirements for petitions to run for office).
117
Hillary Bendert, Jacqueline Hayes & Kevin Ruane, Third Parties and the Electoral College: How Ranked Choice Voting Can Stop the Third-Party Disruptor Effect, 1 Fordham L. Voting Rts. & Democracy F. 332, 336 (2023); see also Daniel Hays Lowenstein et al., Election Law: Cases and Materials 700 (7th ed. 2022) (“Under this system, voters rank the candidates in their order of preference. Each ballot’s top choice is then counted. If no candidate has a majority, the last-place candidate is removed and the top remaining choice on the ballots counted, with the process continuing until one of the candidates has a majority of votes.”).
118
Nat’l Conf. of State Legislatures, Primaries: More than One Way to Find a Party Nominee (2021), https://www.ncsl.org/elections-and-campaigns/primaries-more-than-one-way-to-find-a-party-nominee [https://perma.cc/K8KK-ZATC].
119
See, e.g.,Mich. Comp. Laws § 168.634 (2024).
120
See generally, Tran, supra note 15.
121
See supra text accompanying notes 41–55.
122
See infra Part II.A.
123
Ritchie, supra note 1, at 421. For instance, Louisiana had a fifty-five-day vacancy in 2013, Virginia had an eighty-six-day vacancy in 2014, and Kentucky had sixty-nine-day vacancy in 2016. Id. at 443. Each of these occurred after the imposition of federal administrative requirements in the MOVE Act that potentially lengthened the amount of time required to hold a federal election. See id. at 421.
124
See id. at 424–27 (explaining the effect of the MOVE Act on special election lengths).
125
See id. at 421–24 (identifying the average length of House vacancies in the most recent period studied as 173 days).
126
See supra text accompanying notes 80–81.
127
See Ctr. for Am. Progress, supra note 83.
128
See supra Part II.A.
129
See supra Part II.B.
130
See Video Interview with Chuck Apelian, supra note 108.
131
Some states have similar rules in place for certain vacancies already. See Wash. Rev. Code § 29A.28.041 (2024) (“If the vacancy occurs less than eight months before a general election and before the close of the filing period for that general election, the special primary and special vacancy election must be held in concert with the state primary and general election in that year. . . . If the vacancy occurs later than the close of the filing period, a special primary and vacancy election to fill the position shall be held after the next general election but, in any event, no later than the ninetieth day following the general election.”); Vt. Stat. Ann. tit. 17 § 2621 (2024) (“The special election shall be held not more than six months from the date the vacancy occurs, except that if the vacancy occurs within six months of a general election, the special election may be held the same day as the general election.”).
132
See generally Ritchie, supra note 1.
133
See La. Stat. Ann. § 18:583 (2024) (“The authority required by law to call a special election to fill a vacancy in an office shall issue a proclamation ordering a special election to be held to elect a person to fill the full term of an office when it becomes certain, after the election for the term but prior to its commencement, that a vacancy will exist on the day when the term of the office commences as provided by the constitution or by law.”); Okla. Stat. tit. 26 § 12-119 (2024) (“[A]n incumbent in any elective office for which a vacancy is filled by special election called by the Governor may file with the Oklahoma secretary of state an irrevocable resignation in writing which states that the resignation will not become effective immediately, but rather will become effective on some date certain. Upon receipt of the irrevocable letter of resignation, the Governor shall set the date for the special election. The person elected at the special election shall take office on the later of the date of certification of the results of the special election or the date the resignation of the incumbent becomes effective.”).
134
For instance, the special election in Oklahoma in 2002 took place before the vacancy technically occurred. See Ritchie, supra note 1, at 443.
135
Okla. Stat. tit. 26, § 12-119 (2024). The law applies to “any elective office for which a vacancy is filled by special election.” Id.
136
See, e.g.,Ritchie, supra note 1, at 443.
137
Special Election to Fill Vacant 26th Congressional District Seat to be Held on April 30, WKBW (Feb. 12, 2024), https://www.wkbw.com/news/local-news/special-election-to-fill-vacant-26th-congressional-district-seat-to-be-held-on-april-30 [https://perma.cc/9MZ2-UA3W].
138
Jones v. Stitt, 606 F. Supp. 3d 1117 (W.D. Okla. 2022); see also McKenzie v. Edwards, 361 So. 2d 880 (La. 1978) (challenging Louisiana’s provision as a violation of the state constitution).
139
U.S. Const. art I., § 2, cl. 4; U.S. Const. amend. XVII.
140
Jones, 606 F. Supp. 3d. at 1117.
141
The plaintiff argued he had standing as both a voter and a potential interim appointee because, had there been no anticipated vacancy law allowing the election to begin before the vacancy, the timing of the special election would have required an appointment. Id. at 1121. The court dismissed both arguments, finding that he still retained the right to vote in the special election and that the assertion that the governor might have decided to appoint him was too speculative. Id. at 1121–22.
142
Id. at 1124.
143
Id.
144
Id. at 1125.
145
Id.
146
Id.
147
Id.
148
See, e.g., Trinsey v. Commonwealth of Pa., 941 F.2d 224 (3d Cir. 1991); Fox v. Paterson, 715 F. Supp. 2d 431 (W.D.N.Y. 2010).
149
Members of Congress have proposed various constitutional amendments to mandate special elections to fill vacant Senate seats. In 2009, Senator Russ Feingold (D-WI) proposed an amendment that would require the direct popular election of all senators. Proposing an Amendment to the Constitution of the United States Relative to the Election of Senators, S.J. Res. 7, 111th Cong. (2009). Senator Feingold was joined by a bipartisan slate of electors, including Senators John McCain (R-AZ) and Richard J. Durbin (D-IL), and Representative John Conyers Jr. (MI-D), chairman of the Judiciary Committee, in the House. See Carl Huse, New Idea on Capitol Hill: To Join Senate, Get Votes, N.Y. Times (Mar. 10, 2009), https://www.nytimes.com/2009/03/11/us/politics/11senate.html [https://perma.cc/GU6K-WZK6]. The proposal would have changed the Seventeenth Amendment by removing the phrase that permits gubernatorial appointment and adding a requirement for elections to fill vacancies. A resolution introduced in the House of Representatives at the same time by Representative David Dreier (R-CA) echoes similar language. Proposing an Amendment to the Constitution of the United States Relative to the Election of Senators, H.R. Res. 21, 111th Cong. (2009). Representative Kevin Kiley (R-CA) also proposed a constitutional amendment to mandate Senate seats be filled by election, with the same language both Senator Feingold and Representative Dreier used in 2009. Proposing an Amendment to the Constitution of the United States Relative to the Election of Senators, H.R.J. Res. 57, 118th Cong. (2023). Scholars have similarly proposed such constitutional amendments. Daniel T. Shedd, Money for Senate Seats and Other Seventeenth Amendment Politicking: How to Amend the Constitution to Prevent Political Scandal During the Filling of Senate Vacancies, 79 Geo. Wash. L. Rev. 960 (2011).
150
See, e.g., S.J. Res. 7, 111th Cong. (2009).
151
See supra Part II.B; see, e.g.,Mont. Code Ann. § 13-25-206 (2023) (“[I]f the vacating officeholder represented a political party eligible for primary election under 13-10-601, the person appointed by the governor must be of the same political party.”).
152
See supra, Part II.B; see, e.g.,Md. Code Ann. Elec. § 8-602 (2024). While some state statutes simply identify the “political party” as responsible for putting together the list of appointments, see Haw. Rev. Stat. § 17-1, others are more specific and refer to specific partisan entities, see Md. Code Ann. Elec. § 8-602 (2024) (specifying the “State Central Committee of the political party” should create the list).
153
Haw. Rev. Stat. Ann. § 17-1 (LexisNexis 2012).
154
Md. Code Elec. Law § 8-602.
155
Utah Code Ann. § 20A-1-502(2)(b) (LexisNexis 2010).
156
W. Va. Code Ann. § 3-10-3(a) (West 2022).
157
Wyo. Stat. Ann. § 22-18-111(a)(i) (2011).
158
See Thomas H. Neale, Cong. Rsch. Serv., RL44781, U.S. Senate Vacancies: Contemporary Developments and Perspectives (2018).
159
U.S. Const. amend. XVII.
160
Vikram David Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hastings Const. L.Q. 727, 736 (2008).
161
Id. at 728.
162
Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How Best to Interpret the Seventeenth Amendment, 35 Hastings Const. L.Q. 713, 720 (2008).
163
Zachary Clopton & Steven E. Art, The Meaning of the Seventeenth Amendment and a Century of State Defiance, 107 Nw. U. L. Rev. 1181, 1209 (2013); cf. Andrew Francisco, Why Statutes Attaching Reasonable Conditions to Whom a Governor May Appoint to Fill a Senate Vacancy Are Constitutional, 43 U. Mem. L. Rev. 213 (2012).
164
H.R.J. Res. 52, 111th Cong. (2009).
165
Id.
166
Id. § 1.
167
Id. § 2.
168
Id. § 4.
169
Press Release, Sen. Lonnie Paxton, Bill Passes Allowing Governor Appointments to Fill U.S. Senate Vacancies (Mar. 10, 2021), https://oksenate.gov/press-releases/bill-passes-allowing-governor-appointments-fill-us-senate-vacancies?back=/senator-press-releases/lonnie-paxton/2021-03 [https://perma.cc/TT2A-LUDQ].
170
Okla. Stat. Ann. tit. 51, § 10(D) (West 2021).
171
Ray Carter, Appointment Process for U.S. Senate Vacancies Advances, Okla. Council of Pub. Affs. (May 25, 2021), https://ocpathink.org/post/independent-journalism/appointment-process-for-u-s-senate-vacancies-advances [https://perma.cc/8UFF-6G78] (“If there was a vacancy in that seat today, the person who’s going to win that seat, most likely, is going to be a political insider or a very wealthy person because it’s a shotgun, fast special election that does not give a basic Oklahoman the ability to have the time to go out there and build a coalition to win a U.S. Senate seat.”).
172
The rules of succession had to contemplate the weight of executive power. For this reason, Senator Birch Bayh—the author of the U.S. Constitution’s Twenty-Fifth Amendment—strongly rejected the idea of a “caretaker” role because the approval process should be “out of the partisan arena.” Mary Russell, Caretaker Not Aim of 25th Amendment, Framer Says, Wash. Post, Oct. 12, 1973, at A10; see also Joel K. Goldstein, Birch Bayh and the Twenty-Fifth Amendment: Lessons in Leadership, Fordham L. Rev. 51, 67 (2020) (“[T]he presidency needed to be filled at all times with a functioning and legitimate chief executive. The vice presidency provided the best means of addressing presidential succession and presidential inability.”); 109 Cong. Rec. 24421 (1963) (“The modern concept of the Vice Presidency is that of a man ‘standing in the wings’—even if reluctantly—ready at all times to take the burden. He must know the job of the President. He must keep current on all national and international developments. He must, in fact, be something of an ‘assistant President.”).
173
When President Richard Nixon considered replacements for then Vice President Spiro Agnew, Senate Majority Leader Mike Mansfield and other Democrats urged “a less political choice, some less partisan figure, who could serve as a ‘caretaker’ until the 1976 elections.” Cong. Rsch. Serv., 98-730, Vice Presidential Vacancies: Congressional Procedures in the Ford and Rockefeller Nominations (1998); see also John Herbers, All Rumors, and None of Them Are Very Good,N.Y. Times, Sept. 23, 1973, at E1 (reporting Democratic sentiment against nomination of presidential possibility). These figures warned Democrats would be less inclined to approve the nomination of a figure perceived to be a strong candidate for the presidency in that year. John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Earliest Applications 131, 135–36 (2d ed. 1992); see also Eric F. Goldman, The Tragedy of Lyndon Johnson 240 (1969) (favoring caretaker government followed by special election).
174
U.S. Const. amend. XXV.
175
U.S. Senate, supra note 3.
176
The analysis discussed infra encompasses Article I, § 2, cl. 2, and Article I, § 3, cl. 3 considerations as well as the Tenth Amendment.
177
Okla. Stat. Ann. tit. 51, § 10(D) (West 2021).
178
Carter, supra note 171.
179
Cole v. Richardson, 405 U.S. 676, 680 (1972) (citations omitted) (collecting cases).
180
427 U.S. 347 (1976).
181
Id. at 373.
182
Id. at 357 (citing Williams v. Rhodes, 393 U.S. 23, 32 (1968)).
183
381 U.S. 301 (1965).
184
Id. at 307.
185
Id. at 303, 305.
186
Id. at 303.
187
Id. at 305.
188
323 U.S. 516 (1945).
189
Id. at 518, 524–25.
190
Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 783 (1995) (“Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States.”).
191
Id. at 799 (citations omitted).
192
Id. at 783.
193
Id. at 831.
194
Id. at 798.
195
Id. at 800–01.
196
Id. at 800.
197
Id. at 804.
198
Cook v. Gralike, 531 U.S. 510, 514–15, 526 (2001).
199
See Neil MacNeil Oral History, Univ. of Va. Miller Center: Edward M. Kennedy Oral Hist. (May 9, 2006), https://millercenter.org/the-presidency/presidential-oral-histories/neil-macneil-oral-history [https://perma.cc/2W9A-YCEF] (stating Benjamin A. Smith II, the interim senator appointed to fill John F. Kennedy’s seat after he was elected President, was “a family retainer” and “temporarily sitting in the seat” until Edward Kennedy could run).
200
For example, following Sen. John McCain’s passing in 2018, Arizona Governor Doug Ducey appointed former Senator Jon Kyl to fill the vacant seat. Previously, Kyl served in the Senate for eighteen years, and in the House for eight years before that. When appointed, Kyl committed to serving only through the end of the congressional term and indicated that he did not want to stick around long. See Billy House, Jon Kyl, Former Republican Senator, Picked to Replace McCain, Bloomberg (Sept. 4, 2018, 5:06 PM), https://www.bloomberg.com/politics/articles/2018-09-04/jon-kyl-former-republican-senator-picked-to-replace-mccain [https://perma.cc/M9YZ-CGCJ]; Jessica Taylor, Arizona Sen. Jon Kyl to Step Down, Leaving McCain’s Seat Vacant Again, NPR (Dec. 14, 2018, 10:36 AM), https://www.npr.org/2018/12/14/671727813/arizona-sen-jon-kyl-to-step-down-leaving-mccains-seat-vacant-again [https://perma.cc/ZBD7-XRJR].
201
Christopher A. Cooper, H. Gibbs Knotts, & Jordan Ragusa, The Constrained Governor: Exploring Gubernatorial Decision Making on Senate Appointments, 69 Pol. Rsch. Q. 482, 490 (2016).
202
James Arkin & Alex Isenstadt, Kyl Tapped to Succeed McCain in Senate, Politico (Sept. 4, 2018, 6:05 PM), https://www.politico.com/story/2018/09/04/former-sen-jon-kyl-to-replace-mccain-806413 [https://perma.cc/SJ7T-TG5X].
203
Cooper et al., supra note 201, at482–494.

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Reforms for Filling Vacancies in the U.S. Senate and House of Representatives