undemocratic laws re: Senate vacancies and replacements

[welshTerrier2]

there are all sorts of different laws, on a state-by-state basis, that define the process to fill Senate vacancies when a Senator is unable to complete their term for any reason. in my view, unless the remaining term is very short, perhaps less than 6 months, all laws other than those that call for a special election are disturbingly undemocratic and should be challenged. it is outrageous that we allow such blatant disrespect for the will of the voters whether our party is the beneficiary or the victim of such laws. it is time to refocus on what is democratic and what is undemocratic. it is time we started respecting the rights of citizens in all areas of the law.

many of these laws allow the Governor of the State to appoint a replacement for the duration of the previous Senator's term. when concerns were raised recently about Senator Johnson, we learned that South Dakota law allowed the Governor to do exactly that. voters had elected a Democrat in the Senate but the republican Governor they elected could appoint a republican Senator if Johnson was unable to complete his term.

in today's situation, with the sad passing of Senator Thomas, a very odd law comes into play in Wyoming. the law allows the previous Senator's political party to send the Governor 3 candidates from which the Governor, in this case a Democrat, can choose. A recent bill introduced in the Wyoming legislature almost gave the total power to fill a vacancy to the previous Senator's political party. Below is an excerpt from the bill introduced in the Wyoming legislature that was scheduled to take effect this July 1 if it passed. Notice that instead of the current law's requirement that a choice of 3 candidates be sent to the Governor, the proposed law would require that only a single candidate be sent to the Governor. In essence, the proposed law would allow a political party to install anyone they selected.

This is horribly undemocratic. Political parties should have NO SAY AT ALL in the replacement process. The previous Senator had to stand for election. An extreme candidate might well have lost the election to the other party. Under both current Wyoming law and the following proposed law, the Party would not have to worry about losing anything. They could appoint the most extreme replacement who would never have had a realistic chance of winning in a general election. This blatantly disenfranchises all voters in the minority party and, in my view, should be declared unconstitutional. This applies to the current law in Wyoming and the laws of many other states. In the end, these laws are undemocratic because they disenfranchise voters. The solution is to call for a national law, or a test case in the courts, that demands a special election.

Here's the proposed change in the Wyoming law:

source: http://legisweb.state.wy.us/2007/Introduced/SF0099.pdf

(i) If a vacancy occurs in the office of United States senator, representative in congress or in any state office other than the office of justice of the supreme court and the office of district court judge, the governor shall immediately notify in writing the chairman of the state central committee of the political party which the last incumbent represented at the time of his election under W.S. 22-6-120(a)(vii), or at the time of his appointment if not elected to office. The chairman shall call a meeting of the state central committee to be held not later than fifteen (15) days after he receives notice of the vacancy. At the meeting the state central committee shall select and transmit to the governor the names name of three (3) persons one (1) person qualified to fill the vacancy. Within five (5) days after receiving these three (3) names the name, the governor shall fill the vacancy by temporary appointment of one (1) of the three (3) that person to hold the office. If the incumbent who has vacated office did not represent a political party at the time of his election, or at the time of his appointment if not elected to office, the governor shall notify in writing the chairman of all state central committees of parties registered with the secretary of state. The state central committees shall submit to the governor, within fifteen (15) days after notice of the vacancy, the name of one (1) person qualified to fill the vacancy. The governor shall also cause to be published in a newspaper of general circulation in the state notice of the vacancy in office. Qualified persons who do not belong to a party may, within fifteen (15) days after publication of the vacancy in office, submit a petition signed by one hundred (100) registered voters, seeking consideration for appointment to the office. Within five (5) days after receiving the names of qualified persons, the governor shall fill the vacancy by temporary appointment to the office, from the names submitted or from those petitioning for appointment;

Section 2. W.S. 22-18-103 through 22-18-109 are repealed.

Section 3. This act is effective July 1, 2007.

[MonkeyFunk]

1. I'm not sure

that many states allow an appointee to fill an entire term. Most states that I know of require the appointment of a temporary replacement, usually until the next scheduled General Election.

Oregon, Wisconsin and Oklahoma require special elections to be held.

Here's a good article on it:

http://www.senate.gov/artandhistory/history/resources/pdf/Vacancies.pdf

[welshTerrier2]

4. so the max time could potentially be two years?

does that sound right? if a Senator, whose term was going to expire two years after yesterday's General Election, dies, an interim appointment could be made without requiring a special election. the voters would not have another say until the next General Election, two years later, occurred.

is that correct?

[MonkeyFunk]

5. generally, yes

that seems to be how most states do it.

So Thomas' replacement is an interim replacement until an election in November, 2008, where voters will choose someone to fulfill his term.

Senator Menendez of New Jersey was appointed in January, 2006, but had to run to fill the term in November of that year.

[MousePlayingDaffodil]

2. Unconstitutional? How?

The 17th Amendment provides, in section 2, that "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."

In other words, the U.S. Constitution leaves it to each state's legislature to determine, by law, how vacancies in the state's U.S. Senate representation are to be filled. You might not like the approach taken by Wyoming, but it's hardly clear to me that the approach is "unconstitutional."

[Warpy]

3. Originally, Senators were chosen by state legislatures

The nature of the Senate's job is quite different from that of the House. Senators represent their states, while Representatives represent the people in that state. That's why it was originally set up that the states, themselves, would choose the Senators via their legislatures. It's why we don't have proportional representation in the Senate. It's why, when a Senator dies or becomes unable to fulfill his job, his replacement is appointed by the state via the governor and not the people within the state.

I realize this explanation is clear as mud, but it's why there aren't special elections for the Senate.

(and I'd still like to make the EC proportional as a step towards getting rid of it, entirely. Now THAT is antidemocratic, the EC!)