No doubt the last time anyone thought about the exact wording of the presidential oath of office was on Nov. 22, 1963 when federal Judge Sara T. Hughes had to scramble for a copy of the U.S. Constitution to administer the oath to Lyndon B. Johnson aboard Air Force One. Of course, that was an unanticipated event, occurring only a little while after President John F. Kennedy was assassinated. Chief Justice John Roberts, on the other hand, prepared for his role and the task ahead. Swearing in a president for the first time, I suppose, is enough to make anyone a little nervous, however, and as the whole world watched, he did not get it exactly right. And so, with an “abundance of caution,” the oath was re-administered, or perhaps administered for the first time. We should, however, be thankful to the chief justice for reminding us of the actual text 1 and the legal import of oaths.
It is also likely that most New York lawyers have not thought about the 17th Amendment to the Constitution since 1968, the year Senator Robert Kennedy was assassinated. This amendment requires direct election of U.S. Senators, and includes a provision for replacing senators when vacancies occur. Of course, the 17th Amendment is in the news because of the number of high-profile Senate vacancies this year, the seats of President Barack Obama in Illinois; Secretary of State Hillary Rodham Clinton in New York; Vice President Joseph Biden in Delaware; and Secretary of the Interior Ken Salazar in Colorado.
The vacancy provision appears simple enough. A governor shall issue “writs of election to fill such vacancies,” but “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.” 2 This has been interpreted to mean that if a state has opted to allow for a temporary appointee, she may serve until an election is required pursuant to that jurisdiction’s election code. In New York, in the circumstances of Ms. Clinton’s vacancy, newly appointed Senator Kirsten Gillibrand does not face the voters until November 2010, almost two full years after assuming office. 3
This revelation may have come as a surprise to most voters, indeed, to most lawyers who do not specialize in the area. The news is especially startling after an election year in which so many people were actively engaged. And it certainly seems odd in light of the fact that when there is a vacancy in many other offices, there are special elections after a short period of time: the state Legislature, 4 the city council 5 and the House of Representatives, 6 for example; though, I should add, not for New York State attorney general or comptroller. 7
It is curious that the U.S. Constitution requires immediate special elections for members of the House, but not the Senate. Thus, in 1968, when Governor Rockefeller appointed Charles Goodell to fill Senator Kennedy’s seat, voters went to court to force an immediate election rather than allow him to serve as an appointed senator until the end of 1970. They obviously lost. In Valenti v. Rockefeller, 8 a three-judge panel held that an “extended” appointment period was not unconstitutional, and, in particular, not contrary to the 17th Amendment. When there is a U.S. Senate seat vacancy in New York, voters must wait until the general election in the next even-numbered year. 9 Three factors led to this result: the plain language of the 17th Amendment; the customary practice and laws of other states; and the substantial state interest in having a vote during a regularly scheduled election. Judge Marvin Frankel dissented, terming the majority’s decision “an unprecedented extension of the ‘temporary’ appointive power.” Nevertheless, the decision was affirmed without opinion by the U.S. Supreme Court. 10
New York is not alone in providing for appointments of replacement senators. A whopping 45 other states also permit appointment, allowing the replacement senator to serve until the next election. Twenty-two of these states have permissive appointment laws, where the governor is not required to name a replacement; the other 23 have mandatory appointment laws like New York. And, depending upon when the vacancy occurs, the appointee in almost three-quarters of these states does not have to face voters for as long as two years.
Moreover, some states have unique or special peculiarities. For example, in Louisiana the governor’s appointment may serve out the unexpired term only if a year or less remains on the term; 11 in Iowa and Texas the governor makes an appointment only if the vacancy occurs or will occur while Congress is in session. 12 Had John McCain won the presidential election, the Governor of Arizona would have appointed his replacement. But that state has its own wrinkle. The temporary appointee must be from the same political party as the outgoing senator. 13 Were this to have occurred, Democratic Governor Janet Napoletano would have been required to choose a Republican. 14 Three other states follow the same practice: Hawaii, Utah and Wyoming. 15 Interestingly, in New Hampshire, which does not require a governor to appoint a replacement from the same party as the outgoing senator, 16 the Democratic governor was all set to replace Republican Senator Judd Gregg with another Republican when Gregg seemed headed to the Commerce Department.
Only four states mandate a special election to fill a vacancy in the U.S. Senate. Massachusetts, Oklahoma, Oregon and Wisconsin require elections, and do not provide for appointments. 17 Oklahoma’s statute is a bit quirky, though: it does not apply if the vacancy occurs after March 1 of the last year of the term. In that situation, the candidate elected at the general election is appointed by the governor for the remainder of the unexpired term; that law leaves Oklahomans without a senator for up to nine months.
And then there is Alaska. After former Governor Frank Murkowski appointed his daughter to the very Senate seat he himself had vacated, the people of Alaska voted in a referendum to join the small club of states that require immediate special elections; however, Alaska also has a statute that provides for an interim appointment pending the special election. 18
Senator Russ Feingold (D-Wisc.) is proposing to amend the U.S. Constitution to require all states to conduct special elections to fill Senate vacancies. Of course, the amendment process is long and arduous. 19 Therefore, unless and until such an amendment passes, New York State retains the option to change its own law. It should.
Jerry H. Goldfeder is special counsel at Stroock & Stroock & Lavan, and the author of “Goldfeder’s Modern Election Law.” Benjamin Rubinstein, an associate at Stroock, contributed to the research and preparation of this article.
1. U.S. Const. Art. II, Sec. 1, cl. 8.
2. U.S. Const. XVII Amend.
3. N.Y. Pub. Off. Law §42(4-a) (McKinney 2009).
4. N.Y. Pub. Off. Law §42(3) (McKinney 2009).
5. New York City Charter §25.
6. U.S. Const. Art. I, §2, cl. 4; N.Y. Pub. Off. Law §42(4) (McKinney 2009).
7. N.Y. Const. Art. 5, §1 (“No election of a comptroller or an attorney-general shall be had except at the time of electing a governor.”); N.Y. Pub. Off. Law §41 (McKinney 2009) (legislature to make appointment by joint ballot).
8. 292 F. Supp. 851 (W.D.N.Y. 1968).
9. Id. The political rationale for this can be found in “G.O.P. Acts to Bar City-State Tickets,” in The New York Times, Jan. 18, 1951, p. 22.
10. 393 U.S. 405 (1969).
11. La. Rev. Stat. Ann. §18:1278 (2008).
12. Iowa Code Ann. §69.8 (West 2008); Tex. Elec. Code Ann. §§204.002 (Vernon 2008).
13. Ariz. Rev. Stat. Ann. §16-222 (2008).
14. Ironically, when Democratic Gov. Napoletano resigned her position to become Secretary of Homeland Security, next-in-line Secretary of State Jan Brewer assumed the governorship. Brewer is a Republican.
15. Haw. Rev. Stat. §17-1 (2008); Utah Code Ann. §20A-1-502(2) (West 2008); Wyo. Stat. Ann. §22-18-111(a)(1) (2008).
16. N.H. Rev. Stat. Ann. 661:5 (2009).
17. Mass Gen. Laws ch. 54, §140 (West 2008); Okla. Stat. Tit. 26, §12-101 (West 2008); Or. Rev. Stat. Ann. §188.120 (West 2008); Wis. Stat. Ann. §17.18 (West 2008).
18. Alaska Stat. §15.40.145 (2008).
19. U.S. Const. Art. V.