Wyoming Senator Replacement Law May Be Unconstitutional

This is rather interesting, read the full article.

FindLaw's Writ - Amar: The Wyoming Governor's and the U.S. Senate's Unnoticed Options, Under the Seventeenth Amendment, for Filling the Senate Vacancy Created By Senator Thomas's Death

By VIKRAM DAVID AMAR
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Friday, Jun. 08, 2007

This week's unfortunate death of Republican United States Senator Craig Thomas from Wyoming raises complex, if largely unnoticed, constitutional questions.

The consensus among the pundits is that Thomas's departure from the closely divided Senate will have no short-term effect on the partisan balance there because although the Wyoming Governor is a Democrat, state law provides that when picking a temporary replacement to serve until an election can be held in 2008, the Governor must choose from among three candidates put up by the leadership of the state GOP - the party represented by the fallen incumbent.

This description of Wyoming law is accurate: The state elections code indeed directs that, in the event of a Senate vacancy among the Wyoming Senate contingent, the central party committee of the party represented by the prior incumbent is to submit three names of qualified persons to the Governor, who "shall" then choose one of the three to serve in the Senate until a popular election is held.

What is dubious, however, is whether this Wyoming statutory scheme is valid under the U.S. Constitution. Perhaps, in the spirit of bipartisanship or out of a desire to respect voter wishes, a Democratic Wyoming Governor should consider, and maybe even tap, a Republican temporary replacement for Thomas. But whether the Governor can legally be forced to pick one of the three persons served up by state GOP leaders is an entirely different matter.

The Key Provision: Section 2 of the Seventeenth Amendment

The key provision to consider is Section 2 of the Seventeenth Amendment, an alteration of the Constitution added in 1913 to guarantee direct popular election (as distinguished from state legislative selection) of U.S. Senators. Section 2 says:

"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."

There is a very strong textual argument that the Seventeenth Amendment prevents the Wyoming legislature from dictating the Governor's choices in making a temporary appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive to make [the] appointment."

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.


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