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Tuesday, June 18, 2013

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments

Thomas H. Neale Specialist in American National Government

United States Senators serve a term of six years. Vacancies occur when an incumbent Senator leaves office prematurely for any reason; they may be caused by death or resignation of the incumbent, by expulsion or declination (refusal to serve), or by refusal of the Senate to seat a Senator-elect or -designate.

This report provides information on current vacancies in the Senate, the constitutional origins of the Senate vacancy clause, the appointment process by which most vacancies are filled, and related contemporary issues. It will be revised and updated to reflect current developments in vacancies, appointments, and special elections.

Since December, 2012 four vacancies have occurred in the Senate. Two resulted from the deaths of incumbent Senators, and in the other instances, two incumbent Senators resigned. Three of these vacancies have been filled by temporary appointed Senators who will serve until special elections are held. In the fourth instance, the appointment of a temporary Senator has been announced. The details of each instance are provided below in reverse chronological order.

Senator Frank R. Lautenberg, of New Jersey, died June 3, 2013. New Jersey Governor Chris Christie set a special primary election for August 13, and a general election for October 16. On June 6, the governor announced his appointment of New Jersey Attorney General Jeffrey S. Chiesa to fill the vacancy and serve until the special election. The winner of the special election will serve for the balance of the term, which expires in 2015.

On February 1, 2013, Senator John F. Kerry resigned from the Senate to assume the office of Secretary of State. On January 30, Massachusetts Governor Deval Patrick had announced the appointment of William (Mo) Cowan, to serve until the special election, which was scheduled for June 25. Senator Cowan was sworn in on February 7. The vacancy will be filled by expedited special election procedures enacted in connection with the 2009 death of Senator Edward M. Kennedy. The winner of the special election will serve for the balance of the term, which expires in 2015.

Senator Jim DeMint, of South Carolina, resigned on January 1, 2013, to assume the presidency of The Heritage Foundation. South Carolina Governor Nikki Haley appointed Representative Tim Scott to serve in his place until the vacancy is filled by a special election in 2014. Senator Scott was sworn in on January 3. The winner of the special election will serve until the term expires in 2016. Senator Daniel K. Inouye, of Hawaii, who was also President pro tempore of the Senate, died on December 17, 2012. Hawaii Governor Neil Abercrombie appointed Lieutenant Governor Brian E. Schatz to serve in his place until the vacancy is filled by a special election in 2014. Senator Schatz was sworn in on December 27, 2012. The winner of the special election will serve until the term expires in 2016.

The use of temporary appointments to fill Senate vacancies is an original provision of the U.S. Constitution, found in Article I, Section 3, clause 2. The practice was revised in 1913 by the 17
th Amendment, which substituted direct popular election in place of choice by state legislatures and specifically directed state governors to “issue writs of election to fill such vacancies.” The amendment, however, also preserved the appointment option by authorizing state legislatures to
“empower the [governor] to make temporary appointments until the people fill the vacancies by election.”

Since 1913, most states have empowered their governors to fill Senate vacancies by temporary appointments. Some, however, limit the governor’s power: appointed Senators in Arizona must be of the same political party as the prior incumbent, while in Hawaii, Utah, and Wyoming, the governor must choose a replacement from names submitted by the prior incumbent’s party. In Connecticut and Oklahoma, the governor may make a temporary appointment in limited circumstances, and Oregon, Rhode Island, and Wisconsin require vacancies to be filled only by special election.

Gubernatorial appointment power to fill vacancies was questioned following the 2008 presidential election, particularly with respect to circumstances surrounding the Illinois Senate vacancy. Two alternative federal reform approaches emerged in the 111
th Congress: by legislation and a constitutional amendment. In both instances, all Senate vacancies would have been required to be filled by special election. None of the measures introduced reached the floor of either chamber, however, and no comparable legislation has been introduced to date.

In the states, a number of legislative proposals have been introduced since 2009 to eliminate or curtail the governor’s power to fill Senate vacancies by appointment. Two states substantially modified their vacancy procedures during this period: Connecticut, which significantly restricted the governor’s appointment power in such instances, and Rhode Island, which eliminated it entirely, requiring that all future Senate vacancies be filled by special election.

Date of Report: June 7, 2013
Number of Pages: 20
Order Number: R40421
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