Jack Maskell
Legislative Attorney
Under the Constitution, the Rules of the Senate, statutory law, and consistent Senate practice, an individual elected to the United States Senate in a special election during a session of Congress to succeed an appointed Senator may begin his or her term of office upon receipt by the Senate of “credentials” in proper form from the state, and by taking the constitutionally required oath of office in open Senate session. The appointed Senator who is being succeeded remains in office until the new “Senator-elect” is qualified (i.e., is sworn in and seated as a “Senator” by the Senate).
If a newly elected Senator-elect has won a special election to succeed an appointee during the time that the Congress is in sine die adjournment, and thus is not able to present credentials to the Senate and be seated, that Senator-elect is sworn in on the first day of the new session of Congress, but is considered to have begun his or her term of office on the day after the election. The appointed Senator in that case—in the case of a special election during a sine die adjournment—is considered to have served only until the day of election.
The formal Rules of the Senate require the receipt of “credentials” in proper form concerning an individual presenting himself or herself for membership in the Senate before the oath of office is administered. Such “credentials” are the election (or appointment) certificates signed by the governor and the secretary of state of the state from which the individual was chosen. It should be emphasized that under the Constitution, the official canvassing of votes, counting of military and other absentee ballots, tabulation and certification of vote counts, and the final certification of election results are administered and conducted under procedures established by the individual states. The actual transmittal of the proper election certificate, and the timing of certification, is thus dependent in the first instance on state laws and procedures.
The long-standing Rule of the Senate requiring proper certification from a state concerning the state’s choice for Senator could be waived by unanimous consent, and has on some rare occasions in the past been waived for specific causes and reasons relating to the unintentional or inadvertent delay of the transmittal of credentials in proper form. While this has in the past allowed a Senator-elect to be sworn in and seated by “unanimous consent or without objection” prior to the time that the Senate had actually received the valid, required credentials in physical form, the modern practice is for the Senate to wait for the receipt from the proper state officials of such credentials.
If no special election has been held in the state to fill the remainder of the term of a Senator who has died, resigned, or otherwise left office, then the Senator who had been appointed by the governor to fill the remainder of that term serves until that term’s expiration at noon on January 3 (in the year immediately following the November general election for the new six-year term). The Senator-elect chosen in the regular, general election in November may clearly not be seated (by virtue of such general election) for any remaining session of the current, immediate Congress (a so-called “lame duck” session), since that would allow a term of more than six years, contrary to the United States Constitution. If the governor had failed to appoint a Senator for the remainder of the current term, or if the Senator appointed to fill that term resigns prior to January 3, then the governor could appoint the individual who had won the November election to fill out the remainder of the current term as well.
Date of Report: September 28, 2010
Number of Pages: 8
Order Number: R41031
Price: $19.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Legislative Attorney
Under the Constitution, the Rules of the Senate, statutory law, and consistent Senate practice, an individual elected to the United States Senate in a special election during a session of Congress to succeed an appointed Senator may begin his or her term of office upon receipt by the Senate of “credentials” in proper form from the state, and by taking the constitutionally required oath of office in open Senate session. The appointed Senator who is being succeeded remains in office until the new “Senator-elect” is qualified (i.e., is sworn in and seated as a “Senator” by the Senate).
If a newly elected Senator-elect has won a special election to succeed an appointee during the time that the Congress is in sine die adjournment, and thus is not able to present credentials to the Senate and be seated, that Senator-elect is sworn in on the first day of the new session of Congress, but is considered to have begun his or her term of office on the day after the election. The appointed Senator in that case—in the case of a special election during a sine die adjournment—is considered to have served only until the day of election.
The formal Rules of the Senate require the receipt of “credentials” in proper form concerning an individual presenting himself or herself for membership in the Senate before the oath of office is administered. Such “credentials” are the election (or appointment) certificates signed by the governor and the secretary of state of the state from which the individual was chosen. It should be emphasized that under the Constitution, the official canvassing of votes, counting of military and other absentee ballots, tabulation and certification of vote counts, and the final certification of election results are administered and conducted under procedures established by the individual states. The actual transmittal of the proper election certificate, and the timing of certification, is thus dependent in the first instance on state laws and procedures.
The long-standing Rule of the Senate requiring proper certification from a state concerning the state’s choice for Senator could be waived by unanimous consent, and has on some rare occasions in the past been waived for specific causes and reasons relating to the unintentional or inadvertent delay of the transmittal of credentials in proper form. While this has in the past allowed a Senator-elect to be sworn in and seated by “unanimous consent or without objection” prior to the time that the Senate had actually received the valid, required credentials in physical form, the modern practice is for the Senate to wait for the receipt from the proper state officials of such credentials.
If no special election has been held in the state to fill the remainder of the term of a Senator who has died, resigned, or otherwise left office, then the Senator who had been appointed by the governor to fill the remainder of that term serves until that term’s expiration at noon on January 3 (in the year immediately following the November general election for the new six-year term). The Senator-elect chosen in the regular, general election in November may clearly not be seated (by virtue of such general election) for any remaining session of the current, immediate Congress (a so-called “lame duck” session), since that would allow a term of more than six years, contrary to the United States Constitution. If the governor had failed to appoint a Senator for the remainder of the current term, or if the Senator appointed to fill that term resigns prior to January 3, then the governor could appoint the individual who had won the November election to fill out the remainder of the current term as well.
Date of Report: September 28, 2010
Number of Pages: 8
Order Number: R41031
Price: $19.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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