Disqualification, Death, or Ineligibility of the Winner of a Congressional Election

Congressional research reportMar 20, 2002

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Disqualification, Death, or Ineligibility of the

Winner of a Congressional Election

March 20, 2002

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Disqualification, Death, or Ineligibility of the Winner of a

Congressional Election

Summary

On several occasions, including a Senate race in 2000, a congressional candidate

on the ballot for the general election has died within such proximity to election day

that there was not sufficient time under State election-administration procedures to

change the ballot and substitute another candidate. Leaving the name of a deceased

candidate on the ballot has raised questions and criticisms in some quarters concerning

State authority to issue a “final” ballot and to decline to add or substitute other

candidates at some point prior to an election; whether votes for the deceased

candidate are “legal,” or rather, should not be counted, since the deceased candidate

is not “qualified” to serve in the office; and whether a “vacancy” in the office can be

created, in effect, prospectively, when and if the ineligible candidate receives the most

votes, or whether a new “special election” must proceed immediately.

Under the States’ constitutional “Times, Places and Manner” authority over

federal elections, the States may establish ballot procedures and administrative

requirements. Courts have noted that States have a “compelling” interest in setting

deadlines and in finalizing the ballot “so that general election ballots can be properly

and timely prepared and distributed,” and have thus found that there is no legal or

constitutional problem with a State “finalizing” its ballot and refusing to withdraw,

add or substitute names on the ballot within a reasonable time-frame prior to an

election. Such State deadlines for finalizing the ballot are not only common, but are

seen as absolute administrative necessities for orderly elections, and for the prevention

of disenfranchisement of military and other absentee voters.

With ballot deadlines a common administrative requirement in the States, it is not

unprecedented for a candidate to die in such proximity to an election that the ballots

have been finalized, resulting in the deceased candidate’s name remaining on the ballot

for the election. Under the majority “American Rule,” followed in most of the States

for their non-federal offices, and expressly adopted by both the House and the Senate

for judging the elections of their own Members to Congress, votes for the deceased

candidate are not illegal, improper, or “thrown away” (such that the second-place

vote-getter is elected), nor are the elections ignored and considered non-events;

rather, a “win” by the deceased candidate creates, and is generally considered an

indication of the voters’ preference for, a temporary “vacancy” in the office.

Under the Constitution, vacancies in the House are filled by the issuance of

“writs of election” by the Governor of the State for a special election. For vacancies

in the Senate, however, the Seventeenth Amendment instructs the Governor of the

State to issue writs of election but, in the alternative, the Governor, if authorized by

State law, may make a “temporary appointment” until a later election to fill the

remainder of the term, as directed by the State legislature. The Seventeenth

Amendment, its history, and express judicial interpretation indicate that the States

have discretionary authority to provide for a temporary appointment of a Senator by

the Governor until a future election, such as a regularly scheduled state-wide election,

and that the States are not required to hold a more immediate “special election” to fill

a Senate vacancy, regardless of when the vacancy arises.

Contents

Introduction and Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issues Raised Concerning Deceased Candidate on the Ballot,

and Such Candidate Receiving the Most Votes . . . . . . . . . . . . . . . . . 4

State Authority Over Election Procedures, Administration . . . . . . . . . . . . . 5

Senate and House Decisions on “Qualifications” . . . . . . . . . . . . . . . . . . . . 9

Judging Elections In Congress and the “American Rule” . . . . . . . . . . . . . 11

Seventeenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Disqualification, Death, or Ineligibility of the

Winner of a Congressional Election

This report addresses the issue of what happens when, in an election for the

United States Senate or House of Representatives, the electorate of a State or of a

congressional district gives the most votes to a candidate on the ballot who, because

of constitutional disqualification, death, or other disability, is ineligible to serve in the

Senate or in the House.

Introduction and Background

If a candidate who has been elected to the United States House of

Representatives or the United States Senate subsequently dies (prior to taking the

oath of office), or later acquires or has discovered a legal disability such that he or she

is no longer eligible to serve or to be seated in the House or the Senate, then

precedent and practice indicate that a “vacancy” in that office would be established.

Such a vacancy would then be filled according to the United States Constitution.

However, if a candidate dies prior to a general election for the House or Senate,

but because of the imminence of the election the candidate’s name remains on the

ballot under State election law procedures, and that deceased candidate then receives

the most votes in the election, should this be treated as other than a “vacancy” in the

office which will occur at the beginning of the congressional session?

As expressly provided in the United States Constitution, at Article I, Section 5,

cl. 1, the House and the Senate each “shall be the Judge of the Elections, Returns and

Qualifications of its own Members ...." In judging congressional elections, the

overwhelming weight of precedent in both the House and the Senate has been to

follow the so-called “American Rule,” whereby an absolute disability or ineligibility

of a candidate receiving the most votes in an election (the “majority candidate”)

creates a “vacancy” in the office, which is then filled according to the Constitution.

The next highest qualified vote-getter in such an election is not deemed by the House

or Senate to be entitled to the seat under this “American Rule” (unlike under the socalled “British Rule”), nor is the entire election considered a “nullity” (such that a new

election or “do-over” must proceed immediately).1 Under congressional precedent

and practice, it has not mattered whether the majority candidate was actually ineligible

or not qualified before or after the time of the election, or whether the voters knew

of such ineligibility, death or disqualification before or at the time of the election – the

Riddick and Fruman, Riddick’s Senate Procedure, Precedents and Practice, S. Doc. No.

101-28, 101st Cong., 2d Sess. 701 (1992); 2 Deschler’s Precedents of the U.S. House of

Representatives, Ch. 7, § 9, at 96; see discussion of “American Rule” versus “English Rule,”

in Smith v. Brown (40th Cong.), Rowell’s Digest of Contested Election Cases, 220-221.

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“vacancy” was deemed created, and filled in the manner prescribed in the United

States Constitution.

As to vacancies in the United States Senate, the Seventeenth Amendment to the

Constitution provides that when there are vacancies in the representation of any State

in the Senate, the Governor of the State “shall issue writs of election to fill such

vacancies”; however, in the alternative, if expressly authorized by that State’s

legislature, Governors may make “temporary appointments” to fill a Senate seat until

an election is held to fill the remainder of the term, as directed by State law.2 In the

case of vacancies in the House of Representatives, the Constitution does not authorize

the Governor of a State to fill a seat on an interim basis, but rather instructs only that

“Writs of Election” for a special election shall be issued by the Governor.3 The timing

of the election to fill vacancies for Representative or Delegate, and thus how long the

vacancy will continue, is generally within the discretion of the individual States as a

matter of State law.4

On the several occasions of the death of a candidate for the United States House

of Representatives so close to the election that a new candidate could not qualify in

time to be printed on the general election ballot under applicable State election

administration laws – and that deceased candidate subsequently received the most

votes in the election (or when the majority candidate on the ballot was otherwise

constitutionally ineligible for the office) – the so-called “American Rule” was applied.

That is, the receipt of the most votes by the deceased or otherwise ineligible candidate

on the ballot was deemed to have created a vacancy in the office of Representative,

which was then filled as prescribed under the United States Constitution for vacancies

in House seats, that is, through the issuance of “writs of election” for a special

election. Representatives Hale Boggs (Louisiana) and Nick Begich (Alaska) were lost

and presumed dead in an airplane crash in Alaska on October 16, 1972, less than a

month before their general elections. Under State election procedures, their names

remained on the ballot, and they received the most votes in their respective general

elections, whereupon vacancies were declared, and special elections to fill the

vacancies were held.5 The living candidate with the next highest vote total, that is,

the “runner-up” in the regular general election on the ballot, or from write-ins

United States Constitution, Amendment 17. “A vacancy in the Senate may be filled either

by a writ of election or by state executive appointment under the Seventeenth Amendment.”

Deschler’s Precedents, supra at Ch. 8, § 9, p. 250.

Article I, Section 2, cl. 4. For a general discussion on the process of filling House and Senate

vacancies, see Neale, “House and Senate Vacancies: How Are They Filled?” CRS Report 971009.

2 U.S.C. § 8. See Jackson v. Ogilvie, 426 F.2d 1333 (8th Cir. 1970), cert. denied, 400 U.S.

833 (1970), on mandatory duty of Governor to issue writ of election.

Washington Post, November 9, 1972, at A25; Washington Star, December 7, 1972, at A16;

Washington Post, December 8, 1972, at A7; New York Times, December 13, 1972, at 48; 2

Deschler’s Precedents, Ch. 8, § 9.5; Congressional Quarterly, Congress and the Nation,

Volume III, 1969-1972, at 24. A “vacancy” is generally announced by the executive of a

State, as incident to the procedures for issuing writs of election for a special election, but may,

where appropriate, be formally announced by the House with notification sent to the

Governor. Deschler’s Precedents, supra at Ch. 8, §9.

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(Representative Boggs was unopposed), was not declared the winner. On October

7, 1962, Representative Clement Miller of California died also in a plane crash shortly

before the 1962 general congressional election. As reported, “[u]nder California law,

it was too late for the Democratic party to place a new nominee on the ballot for the

November 6 election,” and Representative Miller’s name remained on the ballot.6

When he received the most votes, a “vacancy” was declared in the seat, and filled

according to the Constitution.

Similarly, in the one instance in the Senate when a candidate who had qualified

for the ballot as a major party candidate for the Senate died prior to the time of the

general election, but after the time established by State law for finalization of the

ballot, and who then received the most votes in the election, a “vacancy” in the office

of United States Senator was deemed to have occurred in that State, and such

vacancy was filled as prescribed in the United States Constitution and State law, that

is, by an interim appointment by the Governor. Former Governor Mel Carnahan of

Missouri, the Democratic nominee for Senator, died in a plane crash on October 16,

2000, three weeks before the general election. Under Missouri election law, the

names of deceased candidates remain on the ballot if they die so close to the election

that the filing deadline, or the time for political parties to submit substitute candidates,

has passed.7 The Missouri statute then states expressly what is understood as the socalled “American Rule,” that is, “if a sufficient number of votes are cast for the

deceased candidate to entitle the candidate to ... election had the candidate not died,

a vacancy shall exist ... in the office to be filled in the manner provided by law.”8 The

acting Missouri Governor had indicated after the candidate’s death that if the

deceased candidate received the most votes, the Governor intended to appoint the

candidate’s wife, Jean Carnahan, to fill the vacancy such election result would create.9

After the Missouri Board of Canvassers certified that the deceased candidate, Mr.

Carnahan, had in fact received the most votes in the election, the Governor formally

announced on December 4, 2000, that he was appointing, effective January 3, 2001,

the deceased candidate’s widow, Mrs. Jean Carnahan, to fill the vacant seat until the

next general election for the remainder of the term.10 The credentials of the

Governor’s appointee, Mrs. Carnahan, were accepted by the Senate, and she was

given the oath of office and seated without objection in the Senate on January 3,

2001.11

1962 Congressional Quarterly Almanac 25-26.

Annotated Missouri Statutes, §§ 115.379; 115.363, para. 3. A political party may submit

a substitute party candidate for the deceased candidate if the original nominee dies “at or

before 5:00 p.m. on the fourth Tuesday prior to the general election.” §115.363, para. 3(1).

Annotated Missouri Statutes, § 115.379, para. 1.

See Washington Post, October 31, 2000, at A1.

Washington Post, December 6, 2000, at A6. See Annotated Missouri Statutes, § 105.040.

Congressional Record, January 3, 2001, at S 3 (daily edition), credentials accepted; Id. at

S 5 (daily edition), oath of office given and Member-elect seated without objection.

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Issues Raised Concerning Deceased Candidate on the Ballot,

and Such Candidate Receiving the Most Votes

During the most recent case of the 2000 Senate race in Missouri, there were

arguments raised in certain quarters that it was in some way unconstitutional for the

State to allow the name of a deceased candidate to remain on the ballot for United

States Senator, regardless of the timing of the candidate’s demise in relation to the

election; and that because the deceased candidate on the ballot could not actually hold

the office of United States Senator (being deceased, he was not an “inhabitant” of the

State as required by Article I, Section 3, cl. 3), that either the election in which the

deceased candidate received the most votes should be ignored or set aside and a new

election held immediately, or that the minority candidate, as being the qualified

candidate who received the most votes, should win.12

These arguments, in the first instance, would appear to call into question the

viability and constitutionality of a State’s authority to set a specific deadline for

finalizing the ballot, that is, a certain time or date prior to the day of an election, after

which the ballot for that election could not be changed to add, remove or substitute

the names of candidates. Secondly, these arguments would appear to press the socalled “British Rule” upon the Senate in judging the elections and qualifications of its

Members, whereby the will of the plurality or majority of the voters of the State

would be disregarded either by acting as if the election did not occur, or by not

counting the votes cast for the deceased or otherwise ineligible candidate and seating

the minority candidate.

Finally, certain arguments were forwarded that even if it had not been improper

to allow the deceased candidate’s name to remain on the ballot when the death of the

candidate occurred in such proximity to the election, the State should not be allowed

to treat as a “prospective vacancy” the death of the candidate who remains on the

ballot. Under such argument, if the deceased candidate received the most votes, the

Governor would not be able to make a temporary appointment to fill the “vacant” seat

under the Seventeenth Amendment, even if expressly authorized under the laws of the

State as specifically provided for in the Seventeenth Amendment, but rather could

only issue writs of election for a special election to fill vacancies in the office of

United States Senator which occur by virtue of the election of a disqualified

candidate.13

Brooks Jackson/CNN, “Republicans Could Block Carnahan’s Widow if She Wins Senate

Seat,” October 31, 2000 (CNN.Com); Robert Novack, Chicago Sun-Times, October 30,

2000, at 33: “[A] national GOP leader told me flatly: ‘Jean Carnahan will never be seated in

the U.S. Senate’”; Kevin Murphy, Kansas City Star, “GOP Denies Plan to Challenge a

Carnahan Election,” November 01, 2000; David Thibault, CNSNews.com, “Constitution

Party Will Challenge Carnahan Election in Missouri,” November 9, 2000.

Viet D.Dinh, “Dead Men Can’t Win,” The Wall Street Journal, November 9, 2000, at A26.

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State Authority Over Election Procedures, Administration

As to a State’s authority to establish a deadline where the ballot is “fixed” such

that no new or substitute candidates could be added immediately prior to an election,

it should be noted initially that a division of jurisdiction under our federal system

occurs in the case of elections to federal office. In the first instance, the terms of

federal offices and the qualifications of candidates eligible for federal offices are

established and fixed by the agreement of the States within the instrument which

created those federal offices, that is, the United States Constitution, and are

unalterable by the Congress or by any State unilaterally.14 The Constitution expressly

provides, however, that the individual States generally have the authority to

administer elections, even ones for federal congressional office,15 while at the same

time expressly providing that each House of Congress has the authority to be the final

judge of the results of those elections.16 Furthermore, the Constitution expressly

provides that each House of Congress is to be the judge of the three constitutional

qualifications for office of the Members-elect in those elections, that is, the age,

citizenship and inhabitancy in the State of the Members-elect.

Under the States’ “Times, Places and Manner” authority in the Constitution, the

States may promulgate regulatory and administrative provisions over the mechanics

and procedures even for federal elections within their States regarding such things as

forms of the ballots, “ballot access” by candidates (including new party or

independent candidates), voting procedures, and the nominating and electoral process

generally, to prevent election fraud, voter confusion, ballot overcrowding, the

proliferation of frivolous candidates, and to facilitate proper election administration.17

Legitimate "ballot access" procedures, including filing requirements, filing deadlines,

a show of qualifying support by new or minor party or independent candidates, “sore

loser” laws and other restrictions on cross-filing, are generally within the State’s

purview to “regulate[ ] election procedures” to serve the State interest of “protecting

Powell v. McCormack,395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S.

779 (1995); Cook v. Gralike, 531 U.S. 510 (2001).

Article I, Section 4, cl. 1: “The Times, Places and Manner of holding Elections for Senators

and Representatives, shall be prescribed in each State by the Legislature thereof; but the

Congress may at any time by Law make or alter such Regulations, except as to the Places of

chusing Senators.”

Article I, Section 5, cl. 1:"Each House shall be the Judge of the Elections, Returns and

Qualifications of its own Members ...."

Storer v. Brown, 415 U.S. 724 (1974); Jenness v. Fortson, 403 U.S. 431 (1971); Bullock

v. Carter, 405 U.S. 134, 145 (1972); Williams v. Tucker, 382 F. Supp. 381, 387-388

(M.D.Pa. 1974). Requirements for “ballot access,” in addition to the requirement that they

impose no substantive, new qualifications to federal office, must not violate equal protection

provisions of the Constitution by impermissibly discriminating against new or independent

candidates, nor impermissibly infringe upon First Amendment rights of voters to associate

freely and express their political opinions through support of their chosen candidates.

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the integrity and regularity of the election process....,” and are not impermissible

additional qualifications for federal office.18

As part of these administrative duties involving ballot access, preparation and

printing of the ballots, a State must by necessity, because of the exigencies of time and

duties, limit or establish a time-frame or deadline by which the ballot must be “set” or

finalized, that is, a reasonable time before the general or primary election when no

more candidates may be placed on the ballot or programmed into the voting machines.

Courts have noted that States have a “compelling interest” in setting deadlines and in

finalizing the ballot “so that general election ballots can be properly and timely

prepared and distributed.”19 One of the consequences of not having a “set” ballot at

some reasonable point prior to an election (and of allowing last-minute changes in the

candidates on the printed ballot and on voting machines), would be the

disenfranchisement of military and other absentee voters, since such last-minute

changes would not allow sufficient time before election day to prepare, print, mail out

and then to receive back by mail new absentee ballots with such changes.

As found by one federal court, with an election a “mere five weeks away” even

if plaintiffs had prevailed on the merits of their arguments against their exclusion from

the ballot, the court would have still refused to require the State to change its ballots

by including petitioners’ names, since the court recognized the overriding

administrative necessities of deadlines to insure “time available for election officials

to complete their election preparations” before the election.20 The court noted the

“risk [of] substantial disruption of the electoral process” that could ensue by changing

a ballot after the State-established administrative deadline for finalization of those

ballots, and noted the “tight schedule” of election officials, and the myriad duties and

responsibilities that are valid administrative reasons for reasonable deadlines for

finalizing ballots:

Last minute voter registration, processing of many absentee ballot requests,

supervising the printing of voting machine ballots, sample ballots, tally sheets, and

instruction sheets, instruction classes for election judges and clerks [footnote:

mailing of absentee ballots and classes for election judges and clerks have already

begun], final preparation of voter lists and signature cards, and distribution of

voting machines and supplies remain to be accomplished before [the] November

[election].21

Courts have thus been loathe to require or allow parties to force changes to

ballots close to an election, that is, at the “eleventh hour,” with an election “close at

hand,” or with “the imminence of election,” because of “the potential for seriously

See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-835 (1995), comparing

legitimate “ballot access” provisions as in Storer v. Brown, supra, with impermissible

additional qualifications for federal office, such as individual State-imposed term limits.

Whig Party of Alabama v. Siegelman, 500 F.Supp. 1195, 1205 (D.C. Ala. 1980). These

deadlines may not be unreasonable and discriminate unfairly in favor of major party

candidates over minor or new parties or independent candidates.

Maddox v. Wrightson, 421 F. Supp. 1249, 1252 (D.C. Del. 1976).

Id. at 1252.

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disrupting the State’s electoral process.”22 With an election “less than three weeks

away,” a federal court refused to require the changing of a ballot to add petitioners’

names, even on a strong First Amendment showing by petitioners, since “much of the

ballot and voting machine preparation” had already taken place, and there needed to

be a balancing and a proper weight given to the State’s needs and interests in an

“orderly” election, including the prevention of the “possible disenfranchisement of

absentee and military voters caused by eleventh hour changes to the ballot.”23 Justice

Marshall, on circuit, turned down on October 1 a request to order names to be printed

on a ballot for an upcoming November election citing, among other reasons, the

State’s concern for the potential “chaotic and disruptive effect upon the electoral

process,” since the “Presidential and overseas ballots have already been printed; some

have been distributed. The general absentee ballots are currently being printed.”24

The length of time before the election of a deadline which fixes the ballot, in

relation to the administrative tasks that must be accomplished during that time, is

generally relevant in judging the reasonableness and necessity of such deadline. The

courts have noted that overly long deadlines for the filing of petitions by candidates,

such as March or April deadlines for a November election, may not be of such a

necessity as to overcome Fourteenth Amendment and First Amendment complaints

of unfair treatment of supporters of those candidates who must file petitions to gain

ballot access (as opposed to nominated party candidates who had much later

deadlines).25 In the context of a deceased candidate, it is conceivable or at least

arguable, that an issue of this nature could arise, for example, if a deceased Senatorial

candidate whose name remains on the ballot is of a different political party from that

of the Governor of the State, and if there is an unusually long period of time before

the general election when the ballot is “fixed” by State law. In such a situation voters

affiliated with the deceased candidate’s party might argue that they have no choice on

the ballot to select someone of their own political persuasion for Senator, at least for

the “temporary” period before the next election to fill the term. That is, just as a vote

for the other candidate on the ballot is a vote for someone from the other party, a vote

for the deceased candidate of their own party may also be choosing someone from the

NAACP v. New York, 413 U.S. 345, 369 (1973); Valenti v. Mitchell, 962 F.2d 288 (3rd Cir.

1992); Smith v. Board of Elections, 586 F. Supp. 309, 312 (N.D. Ill. 1984).

Valenti v. Mitchell, supra at 301.

Fishman v. Schaffer, 429 U.S. 1325, 1330 (1976). The State election procedure in question

provided a filing deadline for petitions of nine weeks before an election.

Anderson v. Celebrezze, 460 U.S. 780 (1983) (Ohio filing deadline in March for

independent candidates not justified by State administrative need for so much time to verify

petition signatures); New Alliance Party of Alabama v. Hand, 933 F.2d 1568, 1574 (11th Cir.

1991)(April deadline for new and minor party candidates not justified as “... evidence tends

to show that the State would be able to place the name of a candidate on the ballot at a fairly

late date without unduly impairing the administrative task of printing the ballot ....”);

McCarthy v. Kirkpatrick, 420 F. Supp. 366, 374 (W.D.Mo. 1976), deadline of 188 days

before election for independent candidates to file petitions was too long, as State of Missouri

could conceivably add or take names off ballot as late as September for a November election;

McCarthy v. Austin, 423 F. Supp. 990, 999 (W.D. Mich. 1976), ordering the placement of

a name on the ballot on August 27 would not “seriously disrupt [State] preparations for the

general election” in November.

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other party, since the Governor would most likely appoint someone from his own

political party to fill the “vacancy.” There may in such cases be a need to balance the

constitutional rights and interests of voters and supporters of the political party of the

deceased candidate,26 with the right of the State to finalize its ballot for administrative

purposes and the reasonableness and necessity of those time deadlines to perform

such administrative duties as printing and distribution of ballots, including absentee

and overseas ballots, preparing and programing voting machines, preparing voter

instructions and sample ballots, and training of poll workers and officials.27

In sum, there has been found no legal or constitutional problem with a State

“finalizing” its ballot and refusing to add, substitute or withdraw names from the

ballot within a “reasonable” time-frame in proximity to an election. Such ballot

deadlines are not only common in the States, but are seen as absolute administrative

necessities for fairness and orderly elections, and for the prevention of

disenfranchisement of military and other absentee voters, all of which the courts have

recognized as compelling State interests. Unfortunately, it is therefore not

unprecedented nor uncommon for a candidate to die in such proximity to an election

that the ballots have already been finalized, and to have that deceased candidate’s

name remain on the ballot for the election. Under the majority “American Rule,”

recognized and followed by both the House and the Senate for judging the elections

of their Members, as well as most of the States for their own non-federal offices,28

votes for the deceased candidate are not illegal, improper, “thrown away,” or

otherwise deemed to be nullities, nor is the election considered a non-event, but

rather, if the deceased candidate receives the most votes, such expression is

considered indicative that the majority or plurality of the voters favored the creation

of a temporary “vacancy” in the office, to be filled according to the Constitution and

the laws of the State.

The issue, in an imminent federal election, concerning the remaining on the ballot

of the name of a deceased candidate is clearly not whether the candidate who has died

is, or is not now, “qualified” to “be a Senator” under Article I, Section 3, clause 3, or

a Representative under Article I, Section 2, clause 2 of the United States Constitution.

Obviously, the deceased candidate could not and will not serve in or hold the office

to which he or she had aspired while alive; nor has it ever been suggested that a State

intended to issue “credentials” to the deceased candidate from the State to present the

Note, e.g., arguments of supporters of minor party candidates left off ballot in Williams v.

Rhodes, 393 U.S. 23 (1968).

Such constitutional considerations were not present in the case of the 2000 Missouri Senate

race, however, as the Governor was of the same political party as the deceased candidate and

indicated that he would appoint a member of that party (the candidate’s spouse) if the

deceased candidate received the most votes.

133 ALR 319, 321, “Deceased or disqualified person, result of election as affected by votes

cast for”; see, e.g., Evans v. State Election Board, 804 P.2d 1125 (Okla. 1990), citing,

among other supporting cases: Petition of Keogh-Dwyer, 256 A.2d 314, 318 (N.J. 1969);

Jackson v. County Court, 166 S.E.2d 554 (W.Va. 1969); Saunders v. Haynes, 13 Ca. 145

(1859); Derringe v. Donovan, 162 A. 439, 441 (Pa. 1932); Ingersoll v. Lamb, 333 P.2d 982

(Nev. 1959); Tellez v. Superior Court, 450 P.2d 106 (Ariz. 1969); Banks v. Zippert, 470

So.2d 1147 (Ala. 1985).

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issue of “qualifications” to the House or Senate in an effort to seat the deceased

candidate. As far as the State’s participation in the process is concerned, however,

the candidate was qualified (as certified) when placed on the ballot, no timely contests

were filed to challenge the candidate’s qualifications and ballot access at that time,

and the deadline established by State law for finalizing the ballots or for substituting

candidates on the ballot by political parties had passed. In this context, the issue of

“qualifications” for a candidate receiving the most votes in a congressional election

would arise at the time a Member-elect, with credentials from the State (as a result

of either a special election or an interim appointment in the case of a Senator-elect),

presents himself or herself to the House or to the Senate for being sworn in and seated

to fill the vacancy created by the death of the original majority candidate in the general

election.29

Senate and House Decisions on “Qualifications”

As noted, while the States administer federal elections, including such

administrative, housekeeping, and procedural matters as ballot access and placement

on the ballot, the question of the qualifications of a candidate for the United States

Congress is decided, in the first instance exclusively as provided for in the United

States Constitution, and then, as to whether a person has met such constitutional

qualifications, by each House of Congress judging the elections, returns and

qualifications of its own Members.30 Although there had been in the history of our

country some debate over the nature of the authority of Congress to judge general

“qualifications” and/or suitability of a Member-elect for office, the extent of the

authority to exclude a Member-elect by majority vote based on the Member-elect’s

“qualifications,” was expressly and narrowly delineated by the Supreme Court in 1969

in Powell v. McCormack.31 The Supreme Court in that case clearly stated that “in

judging the qualifications of its members Congress is limited to the standing

qualifications prescribed in the Constitution,”32 that is, the Member-elect's age,

citizenship, and inhabitancy in the State from where elected.33 The Court noted that

the House is “without authority to exclude any person, duly elected by his

constituents, who meets all the requirements for membership expressly prescribed in

the Constitution.”34

Modern decisions in the House or Senate on determining “qualifications” are

fairly rare, in part because of the clarification by the Supreme Court in Powell v.

“[E]lection does not, of itself, constitute membership ....” Deschler’s Precedents, supra at

Ch. 9, § 47, p. 481. “... Neither do election and return create membership .... [A] person may

be selected by the people, destitute of certain qualifications, without which he cannot be

admitted to a seat.” Deschler’s Precedents, id., citing Hammond v. Herrick, 1 Hinds’

Precedents § 499.

Constitution, Article I, Section 5, cl. 1

395 U.S. 486 (1969).

Id. at 550.

Article I, Section 2, clause 2 (Representatives); Article I, Section 3, clause 3 (Senators).

Powell v. McCormack, supra at 522.

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McCormack delineating Congress’ authority in judging qualifications to judge only

the three express constitutional “qualifications” for office,35 and because modern

communications and media coverage make it more likely that an actual disqualifying

condition (such as a candidate’s age or lack of citizenship) would be revealed before

nominations by a major political party are made. It should be noted that an

appointment by the Governor of California under the Seventeenth Amendment and

the laws of California was challenged in 1964 on the basis of “qualifications” of the

appointee, Pierre Salinger. Under the laws of the State of California one needed to be

a “qualified elector” to be a candidate for United States Senate, which would have

required one to have resided in the State for a particular amount of time. Some

Senators argued that Salinger was not qualified to be chosen to fill the unexpired term

of a Senator from California because, under the laws of the State of California, he had

not resided in California long enough to meet the State's qualifications of being an

“elector,” as required by State law for candidacy.36 The Senate found, in accordance

with the findings of the Privileges and Elections Subcommittee of the Committee on

Rules, however, that such a State law would have force and effect only as to State

and local offices, and could not disqualify one from being chosen as a United States

Senator. State provisions cannot bind the Senate in determining the constitutional

qualifications for office of those presenting credentials for seating, nor can State law

add a “durational” residency requirement to the inhabitancy qualification for Senator

set out in the United States Constitution — that is, to be an “inhabitant” of the State

“when elected.”37

In the Senate, there has since the adoption of the Seventeenth Amendment been

one other case (in addition to the 2000 Missouri election) in which an ineligible

candidate was on the ballot, and then received the most votes in the election. In that

instance, the Senate candidate receiving the most votes was not yet eligible to serve

in the Senate at the time he was on the ballot for the general election, nor at the time

of the beginning of the new congressional session, because he was only 29 years of

age. The Senate found that since the issue of “qualifications” arises when the

candidate or Member-elect presents his credentials to the Senate for seating, the

Senate could and did allow the candidate/Member-elect to delay presenting his

credentials until the time he was 30 years old, and thus qualified.38 The precedents

in the House similarly indicate that the issue of qualifications would arise at the time

a Member-elect presents his or her credentials for seating, generally at the

commencement of the session, and that the Member-elect would have to meet the

“age” and “citizenship” requirements at that time (but must meet the “inhabitancy”

requirement at the time of the election, that is, “when elected”). The House has in the

The precedents of both the House and Senate pre-dating 1969, where a Member-elect’s

“character” or pre-election “conduct” was examined in judging “qualifications” to office, are

thus of limited relevance to modern congressional practice and constitutional interpretation.

Deschler’s Precedents, supra at Ch. 7, § 9, at 98.

See discussion in election case of Pierre E.G. Salinger, Case 134, United States Senate

Election, Expulsion, and Censure Cases, 1793-1990, Senate Doc. 103-33, at 413 (1995); S.

Rpt. 1381, 88th Cong., 2d Sess. (1964).

S. Rpt. 1381, supra at 4-6.

Hatfield v. Holt, Case No. 119, Election, Expulsion and Censure Cases, supra at 360.

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past also allowed a Member-elect to defer taking the oath of office until the beginning

of the second session of the Congress (even though Congress was called into session

earlier by a Presidential proclamation), at which time the Member-elect had met the

seven-year citizenship requirement, notwithstanding the fact that he was “ineligible,”

that is, he was not a citizen for seven years at the time he was on the ballot and

elected in the November congressional election, nor at the beginning of the first

session of the new Congress.39 The House earlier, in 1859, had apparently also

allowed a Member-elect, Mr. John Y. Brown of Kentucky, to defer taking the oath

of office beyond the opening of the Congress, until the beginning of the next session

in December of 1860, at which time Mr. Brown met the constitutional age

requirement.40

Judging Elections In Congress and the “American Rule”

As expressly provided in the Constitution, the House or the Senate as an

institution, in addition to judging “qualifications” of its Members, is empowered to

examine the “elections” and “returns” of its own Members beyond a limited

examination of a Member-elect’s three constitutional “qualifications.” That is, as

stated by the Supreme Court, each House may inquire and judge as to whether a

member-elect was “duly elected by his constituents.”41 The Supreme Court in

Roudebush v. Hartke, affirmed the Senate’s authority to be the final judge of the

elections and returns of its own Members, and expressly recognized the constitutional

authority for “an independent evaluation by the Senate” of an election and the election

returns for the United States Senate: “The Senate is free to accept or reject the

apparent winner in either count [original or recount], and, if it chooses, to conduct its

own recount.”42

Given the express textual commitment within the Constitution to each House of

Congress to be the judge of its own Members’ elections, the congressional precedent

and practice in this area, although not technically binding on a future Congress, is of

primary importance.43 Furthermore, given this express textual commitment within the

Constitution, it is not surprising that there is no apparent judicial authority on the

question of whether Congress should seat the next-highest vote-getter when the

majority candidate is ineligible, dead, or otherwise disqualified, or declare the election

a “non-event” and require an immediate “do-over,” since it is not at all clear that the

federal courts, absent any apparent violation of another express constitutional

In re Ellenbogen (1934), Deschler’s Precedents, supra at Ch. 9, § 47, pp. 479 - 482.

1 Hinds’ Precedents of the House of Representatives § 418, pp. 389-390.

Powell v. McCormack, supra at 522.

405 U.S. 15, 25-26 (1972). See also Barry v. United States ex rel. Cunningham, 279 U.S.

597, 614, (1929), concerning the "jurisdiction of the Senate to determine the rightfulness of

the claim [to a Senate seat] ... and its power to adjudicate such right ....”

Brown, House Practice, “Rules and Precedents of the House,” § 2, at p. 809: “On the theory

that a government of laws is preferable to a government of men, the House has repeatedly

recognized the importance of following its precedents and obeying its well-established

procedural rules.”

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provision, would have entertained challenges to review congressional determinations

on the elections of their own Members.44

The practice and experience in both the House and the Senate on elections of

“ineligible” candidates is clear, and is remarkably consistent given the great potential

for partisan division on this issue when it arises with respect to a particular Memberelect. The overwhelming weight of authority in both the Senate and the House, as

well as the express statements of official Senate and House procedural and

parliamentary guides, clearly indicate that the ineligibility of the majority candidate in

a congressional election, whether because of death, disability or other incapacity

before or after the election, gives no title or right to the office to the runner-up

candidate, but rather merely creates a “vacancy” in the office from that State.45 This

has been the case whether or not the law of the particular State in which the election

was held would have, under express State law or practice, given the election to the

runner-up. In the Indiana election case of Lowery v. White in the Fiftieth Congress,

notwithstanding the fact that Indiana law at that time followed the minority “English

Rule” and would have awarded the election to the runner-up if the majority candidate

was ineligible, the majority of the Committee on Elections found that the clear and

long line of congressional precedent follows the so-called “American Rule,” and that

despite the State law the runner-up is not entitled to a congressional seat upon the

disqualification of the majority candidate.46

As early as 1868 the House had under its consideration a challenge to a

“vacancy” where the contesting candidate claimed a seat by virtue of the fact that the

winning candidate on the ballot in the original election had been constitutionally

disqualified because he was not an “inhabitant” of the State. The House explained

that the constitutional disqualification of the candidate on the ballot because of a lack

“The Senate [has the] sole authority under the Constitution to judge of the elections, returns

and qualifications of its members ...” and “to render a judgment which is beyond the authority

of any other tribunal to review.” Barry v. Cunningham, 279 U.S. 587, 613, 619 (1929); Reed

v. County Commissioners, 277 U.S. 376, 388 (1928); Keogh v. Horner, 8 F. Supp. 933, 935

(S.D. Ill. 1934). See also, generally, Baker v. Carr, 369 U.S. 186, 210 (1962), as to

“nonjusticiability” of a political question under the separation of powers doctrine where there

is “found a textually demonstrable constitutional commitment of the issue to a coordinate

political department ....”

Riddick’s Senate Procedure, Precedents and Practices, supra at 701; Deschler’s

Precedents, supra at Ch. 7, § 9, p. 96. For the opposite and minority conclusion in the House

of Representatives, see Lawson v. Owen, H.R. Rpt. No. 968, 71st Cong., 2d Sess. (1930),

Deschlers’ Precedents, supra at Ch. 9, App., pp. 862-863. The recognition of the so-called

“British Rule” by the majority of the Committee on Elections was not, however, dispositive

nor relevant to the final decision of the Committee, nor expressly approved by the House in

this case, as the majority candidate was found to possess the requisite citizenship

qualifications and was seated.

Rowell’s Digest, supra at 426-427; 1 Hinds’ Precedents, supra at § 424, p. 403: “The

universal weight of authority in the United States in both branches of the Congress thereof

render an extended discussion of this point quite unnecessary.” The House did not need to

rule on or confirm the majority opinion of the Committee, as the House found that the majority

candidate was qualified, seating the Member-elect and dismissing the contest.

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of “inhabitancy” in the State was immaterial to the challenger’s claim to the seat, since

the disqualification of the majority candidate on the ballot for lack of inhabitancy

would merely create a “vacancy” in the office, and would not elect the minority or

second place vote-getter:

Contestant further contended that Mr. Mann was not at the time of his election an

inhabitant of the State, and was therefore ineligible. ... [T]he committee held that

it was immaterial whether he was ineligible or not, as under the principles already

settled by the decisions of other cases the ineligibility of the majority candidate

would give no title to the minority candidate. The committee were therefore

unanimous in the opinion that Mr. Jones was not elected, and that the death of Mr.

Mann had caused a vacancy.47

In the Senate, it is plainly noted in the Senate’s procedural treatise that: “In

election cases the ineligibility of a majority candidate, for a seat in the Congress gives

no title to the candidate receiving the next highest number of votes.”48 Senate

precedents, citing similar rulings in the House of Representatives, have stated the

“well-established Senate rule that the ineligibility of the winning candidate gives no

title to the candidate receiving the next highest number of votes.”49 In the Senate

election case of Henry D. Hatfield v. Rush D. Holt, where the candidate on the ballot

who had been elected by the people was only twenty-nine years old, “the Senate ...

reaffirmed that even if a winning candidate was ruled ineligible, the runner-up in the

election would not be declared elected.”50 The Committee on Privileges and Elections

in the 74th Congress explained as follows:

Also, that the said Henry D. Hatfield, by virtue of his having received the

next highest number of eligible votes for United States Senator in the general

election held in and for the State of West Virginia in November 1934, is not the

duly elected Senator from the State of West Virginia. The rule is well settled that

in election cases the ineligibility of a majority candidate for a seat in the Congress

gives no title to the minority candidate or to the candidate receiving the next

highest numbers of votes. See Jones v. Mann (40th Cong.); Rowell’s Digest 220,

2 Bartlett 475; Cannon v. Campbell (47th Cong.), Rowell’s Digest 391.51

It should be noted that one early authority on parliaments and legislative

assemblies, Luther Stearns Cushing, had suggested that, although it would be a

“harsh” result, votes cast for a candidate whom the electors knew to be disqualified

Jones v. Mann, Rowell’s Digest, supra at 226, 1 Hinds’ Precedents, supra at § 326.

Riddick’s Senate Procedure, Precedents and Practices, supra at 701.

Senate Election, Expulsion and Censure Cases, supra at 360, Case No. 119.

Id. at 361.

S. Rpt. No. 904, 74th Cong., 1st Sess. 3 (1935). See also Bayley v. Barbour, 1 Hinds’

Precedents, supra at § 435, p. 422: “The Elections Committee held that a contestant could

have no claim to a seat declared vacant because of the constitutional disqualifications of the

sitting Member.”

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should be considered “thrown away” and “the opposing candidate elected.”52 In the

early election case of Smith v. Brown (1861) in the House, however, Cushing’s

opinion, based on English parliamentary practice and called the “English Rule,” was

criticized and expressly rejected in favor of the “American Rule” of representative

democracy. As explained in Rowell’s Digest, the committee in that case found:

But the English rule had never been applied in this country and was hostile to the

genius of our institutions. Mr. Cushing, in stating the English parliamentary rule,

states that in his opinion the same rule applies in this country, but he gives no case

to sustain his statement, which is the best of evidence that there are none. There

had been numerous cases in the House and Senate where members were deprived

of their seats because of ineligibility, but in no case had it ever been claimed that

any title was thereby given to the minority candidate.53

The so-called “American Rule” is based on principles of representative

democracy, that in such a system the overriding issue in an election contest in the

House or Senate is to attempt to effectuate the will of the majority (or plurality) of

the voters of that State or district, usually in determining who was “actually elected”

or “duly elected” by the people to represent them, that is, who has received the most

votes.54 Under these principles, one who has, in fact, lost an election, that is, has

received fewer votes than someone else on the ballot, is therefore not seated by the

legislature in contravention of the choice of the people of the State or district upon

a finding by the legislature of an ineligibility and disqualification of the actual winner

of the election. When, under the American Rule, a majority or plurality of voters vote

for a candidate widely known to be ineligible (such as in the case of a candidate who

dies shortly before the election but whose name remains on the ballot), it is assumed

that the will of the majority or plurality of voters was to choose a “vacancy.” In the

case of Senate races, if the Governor has already indicated the person whom he will

appoint to fill the vacancy should the deceased candidate receive the most votes, then

the will of the electorate, in giving the most votes to the deceased candidate, would

arguably have been expressed in favor of that proposed appointee over the other

candidates on the ballot. In one case in the Senate concerning an “anticipatory

appointment,” where there arose an issue as to which Governor (the outgoing or

incoming) had the authority to appoint an interim Senator to the vacancy created by

the in-coming Governor who was giving up his Senate seat to be Governor, the

Senate precedent indicates that the decision was made, in part, on a recognition that

“the voters had known when they elected Matthew Neely governor that he intended

to name his Senate successor, since he made his plan clear during the campaign.”55

Cushing, Elements of the Law and Practice of Legislative Assemblies, at 67 (Boston 1856).

Smith v. Brown, Rowell’s Digest, supra 220-221.

Justice Joseph Story, Commentaries on the Constitution of the United States, Volume I,

§ 833, p. 585 (1873); Tucker and Tucker, The Constitution of the United States, A Critical

Discussion of Its Genesis, Development and Interpretation, Vol. I, at pp. 426-427 (1899):

“The power of election is vested ... in the constituency,”and it is left to each House finally to

determine who the constituency has “duly elected.” See also Powell v. McCormack, supra

at 522; Roudebush v. Hartke, 405 U.S. 15 (1972).

Martin v. Rosier, Senate Election, Expulsion and Censure Cases, supra at 373, Case 124.

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Seventeenth Amendment

It was argued during the 2000 Senate race in Missouri that the Seventeenth

Amendment, adopted principally to provide for popular election of United States

Senators, should limit a Governor’s authority (and the authority of the State

legislatures in empowering the Governor) to require a Governor to issue only “writs

of election” for a special election when there is a vacancy which has been created by

the election of a candidate known to be disqualified or ineligible at the time of the

election, rather than making a “temporary appointment” to fill such vacancy until a

later scheduled election.56 Although there are some interesting policy arguments

concerning such proposed limitations on State Governors’ authority to make

“temporary appointments” in these circumstances, particularly where the Governor

is of the same major political party as the surviving candidate,57 there is nothing on the

face of the language of the Seventeenth Amendment, its enactment history, nor any

judicial interpretations or congressional precedents which support such a restrictive

construction of State authority under the Amendment.

The language of the vacancy clause of the Seventeenth Amendment clearly

provides no distinctions as to when or how the “vacancy” in the office has been

created:

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.

The text and the actual language of the Amendment clearly show, therefore, that

there is no express restriction on a State legislature’s or Governor’s authority which

is dependant or based upon any distinctions in the nature or the timing of how or

when the Senate vacancy occurs. Rather, the language of the Amendment appears

to provide on its face two alternate ways for a State to fill any vacancy in the State’s

representation in the Senate: either the executive of the State shall issue writs of

election for a special election to fill the vacancy, or, if expressly authorized by the

legislature of the State, the Governor may make a “temporary appointment” to fill the

vacancy until the people select a replacement for the remainder of the term in a future

election as the State “legislature may direct.” As noted in dicta by the Supreme

Court, “the Seventeenth Amendment permits a state, if it chooses, to forgo a special

election in favor of a temporary appointment to the United States Senate ....”58 In

practice, most of the States provide for a temporary appointment by the Governor

until the next regularly scheduled biennial congressional election, but a State might

Viet D.Dinh, “Dead Men Can’t Win,” The Wall Street Journal, November 9, 2000, at A26.

Some States require the Governor to select someone from the same political party as the

deceased Member to fill a vacancy, but such additional requirement might prove difficult to

enforce in court, as it may be seen as a qualification for the Senate additional to those

established in the Constitution.

Rodriquez v. Popular Democratic Party, 457 U.S. 1, 11 (1982).

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also provide for a more immediate “special election” and authorize an appointment

by the Governor until the time of such election.59

Generally speaking, in provisions such as the Seventeenth Amendment, the “plain

meaning” of the text and the words of the provision should be employed in discerning

its import and intent, unless there is some clear and express countervailing enactment

history.60

Furthermore, under long-established principles of constitutional

interpretation, meaning must be given to all the words in a provision, and thus phrases

and words in the text of the Constitution may not be ignored.61 Thus, while the

principal purpose of the Seventeenth Amendment was certainly to provide for the

popular election of Senators, the express discretion and authority delegated to the

State legislatures to allow the Governor of the State to make temporary appointments

to fill Senate vacancies can not be disregarded.62

In the enactment history of the Seventeenth Amendment there is no express

indication that a State is required to hold a more immediate “special election” to fill

a vacancy created by the death or other ineligibility of the majority candidate in a

general election, as opposed to using the alternative method of allowing a temporary

appointment by the Governor until a later election is held, as directed by the State

legislature. In fact, in the earliest formulations of the vacancy language used in what

became the Seventeenth Amendment, the drafter was cognizant of the expense of

State-wide elections, and expressly intended to allow the State to be spared the

expense of having to hold another State-wide “special election” soon after or before

a regular State-wide election.63

For a general discussion of experiences of States in filling Senate vacancies, see Alan L.

Clem, “Popular Representation and Senate Vacancies,” 10 Midwest Journal of Political

Science 52 - 77 (Feb. 1966); for recent compilation of State provisions, see S. Doc. 106-14,

106th Cong., 2d Sess., Senate Election Law Guidebook 2000 (1999).

United States v. Sprague, 282 U.S.716, 731-732 (1931)(in providing two alternative

methods of ratification, there is nothing in the text of the Constitution which requires the

legislature [Congress] to select one method over the other); McPherson v. Blacker, 146 U.S.

1, 27 (1892); see generally, Justice Joseph Story, Commentaries on the Constitution , § 451.

Marbury v. Madison, 5 U.S. 137, 174 (1803); Holmes v. Jennison, 39 U.S. 540, 571

(1840).

One existing problem expressly recognized in the enactment history of the Seventeenth

Amendment was that of extended vacancies in State delegations to the Senate caused by

inaction and political stalemate and intrigue in the State legislatures. S. Rpt. No. 961, 61st

Cong., 3rd Sess. 13-14 (1911); David E. Kyvig, Explicit and Authentic Acts, Amending the

U.S. Constitution, 1776-1995, at 209, noting that “Delaware was represented by only one

senator in three Congresses and none at all from 1901 until 1908.” The provision of a

mechanism for the temporary appointment by the Governor of a State in cases of Senate

vacancies until an election is held, providing a quick and efficient method to fill a Senate

vacancy, may have been intended in part as an effort to address this problem.

Representative Tucker of Virginia originally drafted and offered in 1892 the vacancy

provision eventually adopted in 1912. As reported in the House, one reason discretion was

given to the State legislatures to allow a “temporary appointment” until a later election, such

as a regularly scheduled state-wide election, was that mandatory special elections might be

(continued...)

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There is also no express indication in the enactment history that the Amendment,

contrary to its express language, was intended to limit or restrict the authority or

power of a State legislature over the details of the procedures of elections in their

respective States to fill vacancies. The enactment history of the Seventeenth

Amendment in the United States Congress shows a serious debate and division

concerning “States’ rights,” with one of the major contentions in the debate being

over a provision, adopted in one House, which went so far as to remove entirely

Congress’ residual authority over the “Times, Places and Manners” of federal

elections in the States under Article I, Section 4, clause 1 of the Constitution.64 The

author of the substitute amendment eventually adopted by Congress, Senator Bristow,

noted explicitly that the direct election provisions were not intended to “add new

powers of control to the Federal Government” at the expense of the authority of the

State legislatures over such elections.65 The constitutional provision adopted

expressly provides as to vacancies, in fact, that after a temporary appointment, the

people of the State will fill the vacancy by election “as the legislature may direct.”

This is a direct grant in the United States Constitution of authority and discretion to

the State legislatures,66 limited only by the requirement that the Governor’s

appointment be “temporary,” and there is no indication of a silent or implicit agenda

to limit that authority or discretion when vacancies arise from the death of a

candidate, or otherwise, at the beginning of the term.

Federal courts looking at the issue of whether the Seventeenth Amendment

requires a State to hold a “special election” to fill a Senate vacancy have concluded

that the Constitution delegated to the State legislatures significant discretion and

authority as to the mechanics and procedures of how and when vacancies in the

Senate from their respective States are to be filled. In Valenti v. Rockefeller, a federal

court, in a case expressly affirmed by the United States Supreme Court, found that

there is nothing in the Seventeenth Amendment, nor its history, that requires the State

to hold a special election to fill a vacancy, rather than to have a temporary

gubernatorial appointment, even if such appointment extends, because of the State’s

statutory nominating procedures, more than two years and thus beyond the next

immediate State-wide election.67 The court noted there that the pre-Seventeenth

Amendment history, as well as the Amendment’s enactment history, “provides no

support for plaintiff’s contention that special elections are required to fill vacancies

(...continued)

a “hardship” on the State which recently had or soon will have a state election, since “to add

another State election would be imposing an unnecessary expense on the people.” H.R. Rep.

No. 368, 52d Cong., 1st Sess. 5 (1892).

This provision was reported out of committee in the Senate, and had passed the House. S.

Doc. No. 666, 62d Cong., 2d Sess. 6-9, “Resolution for the Direct Election of Senators,” by

Senator Joseph L. Bristow (1912); Kyvig, Explicit and Authentic Acts, supra at 210-213.

S. Doc. No. 666, 62d Cong., supra at 9. Trinsey v. Commonwealth of Pennsylvania, 941

F.2d 224, 234 (3rd Cir. 1982), cert. denied, 502 U.S. 1014 (1991).

See McPherson v. Blacker, 146 U.S. 1 (1892), as to express constitutional delegation to the

State legislatures of role in electoral scheme for choosing presidential electors.

Valenti v. Rockefeller, 292 F. Supp. 851 (D.C.N.Y. 1968), aff’d, 393 U.S. 404, 405, 406

(1969), rehearing denied, 393 U.S. 1124 (1969).

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under the Seventeenth Amendment.”68 Noting the discretion expressly given in the

text of the Constitution to the State legislatures over this issue, the court found:

The Seventeenth Amendment’s vacancy provision explicitly confers

upon the state legislatures discretion concerning the timing of vacancy

elections. If the legislature authorizes the governor to make a

temporary appointment, the appointee may hold office “until the people

fill the vacanc[y] by election as the legislature may direct.”... [W]e

believe that we must give effect to the natural reading of the

Seventeenth Amendment as adopted since there is no indication that the

Congress which proposed the Amendment, or the state legislatures

which ratified it, intended a different meaning. This natural reading

grants to the states some reasonable discretion concerning both the

timing of vacancy elections and the procedures to be used in selecting

candidates for such elections. This interpretation gains support from

Art. I, § 4 of the Constitution which gives to the state legislatures the

initial power to prescribe the “Times, Places and Manner of holding

Elections for Senators and Representatives ....” If the drafters of the

Seventeenth Amendment had intended to bring about a radical

departure from this normal rule of state discretion in the instance of the

timing and manner of holding vacancy elections, such as by requiring

special elections, it is likely that they would have employed clear

language to that effect. ...69

The court found that the Seventeenth Amendment did place “some limit on the

discretion of the states” by requiring that the Governor’s appointment be “temporary”

until an election is held.70 The majority of the court did not, however, attempt to set

an outer limit to that time. In the case of the New York statutory provisions in effect

and reviewed in Valenti v. Rockefeller, the “temporary appointment” by Governor

Rockefeller after the death of Senator Robert Kennedy worked out to 29 months.71

In a similar manner, in Trinsey v. Commonwealth of Pennsylvania,72 the United

States Court of Appeals found that the discretion granted to the State legislatures in

the Seventeenth Amendment to establish the details of the procedures and timing of

vacancy elections for the Senate was so broad and significant that, even though the

Seventeenth Amendment itself required popular general elections for the Senate, the

Commonwealth of Pennsylvania was within its authority under the vacancy clause to

provide by statute that nominations for a special election to fill a Senate vacancy may

be made without a popular primary election. The court noted that the legislative

history of the Seventeenth Amendment indicated that the Congress “was resistant to

any change that would decrease the power and authority of the states and enlarge that

of the federal government,” and that the “explicit provision in the vacancy paragraph

Id. at 865.

Id.at 855-856.

Id. at 856.

292 F. Supp. at 868.

941 F.2d 224 (3rd Cir. 1991), cert. denied, 502 U.S. 1014 (1991).

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of the Seventeenth Amendment vesting discretion in the state legislatures ... itself

could be deemed dispositive of the issue.”73

Id. at 234.

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