What Constitutional Provisions Govern the Replacement of a Sitting Senator?

The death of Senator John McCain from an aggressive form of brain cancer, while not unexpected, was nevertheless tragic. In life, McCain never shied away from controversy, and controversy has followed him in death.

Appropriately, discussion thus far has focused on his life and legacy, but it is important to look at the mechanism for his replacement. This is especially crucial when the slim Republican majority in the Senate temporarily dropped from 51–49 to 50–49 and the November 2018 elections are shaping up to be perhaps the most important midterm elections in decades

Because the Senate requires a quorum of 51 members to conduct business, Democrats theoretically have the ability to shut down the Senate if every one of them stays home. This could be crucial in the contentious fight to confirm Brett Kavanaugh to the United States Supreme Court, before the 2018 election.

So how do we replace a Senator who dies, resigns in disgrace or is elected President? Generally, the Seventeenth Amendment allows the Governor of the state the Senator represented to appoint a replacement Senator until an election is held. But there is a good deal of flexibility in how the amendment is applied in practice.

Article I, Section 3 of the Constitution provides that “if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.” Recall that when the Constitution was adopted Senators were not elected by popular vote but were elected by state legislators.

Subsequently, Senators were elected by the voters of their states pursuant to the Seventeenth Amendment, ratified in 1913. Relevant to our discussion, the Seventeenth Amendment also provides that “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.

Keep in mind that the amendment only applies to the Senate, not the House. We’ll come back to why this might matter later.

Finally, 2 U.S. Code § 8 provides that “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.”

Thus, although an election must eventually be held to fill a vacant Senate seat, in the interim the Governor of the state is empowered to initially replace a Senator who leaves office mid-term on an interim basis.

Arizona is one of 36 states that require the appointed Senator to run for his or her seat at the next regularly-scheduled general election, or step down if the appointment was only intended to be temporary). The other 14 states require that a special election be called. Four states prevent the Governor from naming an interim appointment, instead leaving the seat vacant until the next regular or special election takes place. Other states can impose additional requirements on the Governor. Arizona falls into the last category.

There are two aspects of Arizona’s local rules that are of interest. First, because Senator McCain passed away after May 30, Arizona’s cut-off date for scheduling special elections, the replacement election could not take place during the November 6, 2018 election. Thus, the newly appointed Senator will sit until 2020 and a special election will take then. The appointee/incumbent and his opponents will then contest for a full, six-year term.

Second, we know that Arizona’s new Senator will be a Republican because Arizona law requires that the Governor appoint a replacement Senator that is a member of the same party as the departed Senator. In addition, Arizona’s Governor, Doug Ducey is a Republican.

One possibility, mentioned by the New York Times, was Representative Martha McSally. But

McSally’s appointment would have created a vacancy in the House. Article I, Section 2, Clause 4 of the Constitution states that a House member can only be replaced by an election in his or her congressional district. This complicated process can take as long as six months, and the seat remains vacant during that time.

Instead, Ducey appointed former Republican Senator Jon Kyl. Kyl will likely not run for re-election, keeping his Senate seat safely in Republican hands until 2020. Moreover, Kyl will be a reliably Republican vote. A sign of Senator Mitch McConnell’s trust in Kyl is that he was given responsibility to guide Kavanagh through the Senate confirmation process.

On at least one occasion, the replacement of a sitting Senator fueled corruption. Recall that a Senator from Illinois named Barack Obama vacated his Senate seat when he was elected President in 2008. Governor Rod Blagojevich was tasked with replacing Obama. He decided to enrich himself by soliciting bribes. He was caught, impeached, removed from office for corruption and sentenced to fourteen years in federal prison. President Trump is reportedly considering commuting his sentence.

Another Senator that gained his seat following the death of a Senator is in the news and highly relevant to our discussion of Senator McCain. Richard Brevard Russell Jr. the governor of Georgia, was elected to the U.S. Senate in 1932 in a special election following the death of Sen. William J. Harris. Russell was an extremely popular Senator — a “Senator’s Senator” — and a Senate office building was named after him.

It remains the Russel Senate Office Building today, but there is a proposal to change its name to the “McCain Senate Office Building.” The debate over that change could get interesting. Russell was a strict segregationist who opposed legislation that would have banned lynching of blacks in the south and authored the “Southern Manifesto” urging Congress to do all it could to prevent school desegregation in response the Supreme Court’s 1954 Brown v. Board of Education decision.

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