Earlier, we wrote about what Hawaii law requires whenone of its U.S. Senate seats becomes vacant. But how did Hawaii'sstatute — a minority rule, but not a complete outlier — come to be?And is a rule that cabins a governor's discretion by limiting the picksfor a temporary appointee to those selected by a political party evenconstitutional, or democratic? For more on the latter issue — do the Hawaii Democratic Party's rulesallow for a transparent selection process — see here.
In this post, my colleage RobertThomas and I explore those questions.
The Original Statute
Soon after statehood in 1959, Hawaii needed to adopt rules to addresswhat would happen if either of its two new U.S. Senate seats becamevacant. In 1961, the Hawaii Legislature passed Act 123which created a new section in the Hawaii Revised Statutes whichprovided that vacancies would be temporarily filled by the Governor,without any requirement of input from others, with the only limitationthat the temporary appointee be a member of the same political party asthe Senator causing the vacancy:
When a vacancy occurs in the office of UnitedStates Senator such vacancy shall be filled for the unexpired term atthe followingstate general election, provided that such vacancy occurs not less thansixtydays prior to the date of the primary for nominating candidates to bevoted forat such election; otherwise at the state general election nextfollowing. TheGovernor shall issue a proclamation designating the election for fillingsuchvacancy. Pending such election the Governor shall make a temporaryappointmentto fill the vacancy and the person so appointed shall serve until theelectionand qualification of the person duly elected to fill such vacancy andshall bea registered member of the same political party as the Senator causingthevacancy. All candidates for such unexpired term shall be nominated andelectedin accordance with the provisions of this chapter.
Afterthe Constitutional Convention of 1968, the Legislature revised parts ofthe state elections code, but the Senate vacancy provision remainedunchanged until 2007. This is likely because the system worked wellenough when Senator Spark Matsunaga died in office in 1990, and DanielAkaka was appointed by Governor Ben Cayetano to temporarily occupy theseat until the 1990 election, when Akaka was selected by the voters tofinish Matsunaga's term. They were all Democrats.
A Changing Dynamic
From 1962 to 2002, every Hawaii governor was a member of theDemocratic Party. But in 2002, the voters in the bluest of blue stateselected Linda Lingle as the first Republican governor since BillQuinn got caught up in the Democratic wave in 1962. By 2007, Hawaii's twosenators (Inouye and Akaka) were advancing in age, and two yearsearlier, Governor Lingle had bucked the Democratic Party by appointingBev Harbin to the state House of Representatives tofill the seat of a Democratic House member who left government for theprivate sector. Harbin was a Democrat at the time of the appointment,but had switched party affliation only days after the outgoing Housemember announced that he would be resigning.
2007 Amendment
In 2007, the Legislature adopted Act 57, which amended the above statute to its curent form. The statute now requires the Governor pick a temporaryappointee from a list provided by the political party ofthe Senator causing the vacancy. Governor Lingle vetoed the bill:
[Under the Bill,] Prospective appointees must have beenmembers of the incumbent'sparty for at least six months prior to appointment, and incumbents whowere notmembers of any political party could only be replaced by other non-partymembers.The goal of the present law is to fill vacancies in theState Legislature and the United States Senate in a timely manner whensuchvacancies occur. These vacancies in elective office are appropriatelyfilled by the Governor, who is elected by the public at large, and, assuch, isaccountable to the public. The process for filling vacancies in theUnited States Senate and the Hawaii State Legislature has been in placesince1970 and has not been shown to have compromised the integrity of theelection process.This bill places the ability for determining who may beappointed by the Governor with the political party leadership of thevacatingoffice holder. This is in spite of the fact that these individuals arenot elected by the public and, as such, are not accountable tothem.Additionally, the bill, without any stated rationale,narrows the field of qualified candidates that the political party canconsiderto those who have been registered members of that party for at least sixmonthsprior to the appointment. Such a provision fails to recognize that thismayunreasonably restrict the pool of potential candidates as the majorityofpeople who personally and philosophically associate themselves with apoliticalparty and vote along party lines may not meet this requirement.
TheLegislature overrode the veto.
Not Quite Outliers
Does this requirement usurp the Governor's powers, and is itanti-democratic as Lingle's veto message suggested? Remember that the Seventeenth Amendment to the U.S.Constitution requires the voters to make the choice of whom to serve outthe remainder of the term, but givesstate legislatures the ability to empower the state "executiveauthority" to make a temporary appointment pending the election. Thus,the Governor's power to select a temporary appointee is a function oflegislative grace, not constitutional right.
Other states handle U.S. Senate vacancies differently. For a summaryof the varying procedures, see here. Like Hawaii, Utah and Wyoming require their governors tomake the temporary appointment from a list provided by the politicalparty of the departed Senator. Arizona requires the governorto appoint from the same political party, but does not provide for theparties to restrict the appointee to a party-selected list. Some states,like Alaska, Oregon andWisconsin, require a special election.
Constitutional Choices and "Good" Policy
But is Hawaii's requirement that the Governor choose from alist selected by a political party constitutional? Although we can findno reported cases one way or the other, at least one constitutional lawscholar argues that such schemes are not because they violate the textof the Seventeenth Amendment:
There is a very strong textual argument that the SeventeenthAmendment prevents the [ ] Legislature from dictating the Governor's specificpersonnel choices in making a temporary Senate appointment: TheAmendment's language differentiates between a state "legislature" and astate "executive" authority, and allows a state legislature not to makeor 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, createspotential appointment power only in Governors; it does not authorizelegislatures to participate in such appointment decisions, beyond simplydetermining whether the Governors should be allowed to make temporaryappointments or not.Vikram Amar, AreStatutes Constraining Gubernatorial Power to Make Temporary Appointmentsto theUnited States Senate Constitutional Under the SeventeenthAmendment?, 35 Hast. Const. L.Q. 727, 729-30 (2008) (citingU.S. Const. amend. XVII). Another scholar, however, argues for the opposite result,although he bases his conclusion more on good policy than strictadherence to the Amendment's language:My own view is that we (and the perhaps mythic "We") wouldagree that in a political system where political parties play, for goodand sometimes for ill, such an important role in structuring what ispolitically (im)possible, it would be foolish indeed to ignore the partyidentity of the senator whose death or resignation has necessitated theinvocation of the Seventeenth Amendment's provision for gubernatorialappointment of replacements. Especially in our own era, where the twomajor parties are as ideologically divided as has been the case inAmerican politics for at least the past century, the presumptivemajorities that voted for either the democratic or republican senator tobe replaced could well feel a sense of justified outrage if a governorused his or her authority to negate that preference and fill the vacantseat with a senator from the opposite party (who would almost certainlybe substantially to the right or the left of the priorsenator).To be sure, one can conjure up scenarios whereby thenow-absent senator was narrowly reelected only because of namerecognition or a last-moment scandal that discredited the favoredopponent. But, after all, we are talking only about filling a vacancyuntil the next scheduled election — and, in some cases, even beforethen if a special election were called. If the majority is ready toshift its preferences, it will have that opportunity in no less thantwenty-four months and, most often, even earlier. There is no goodreason for an "opposite-party governor" to anticipate that change and,in effect, negate the consequences of the closest previous election withregard to expressed party preference.See SanfordLevinson, Political Party and Senatorial Succession: A Responseto VikramAmar on How to Best Interpret the Seventeenth Amendment, 35Hast. Const. L.Q. 713, 717-18 (2008) (footnotes omitted). Final ThoughtsWhile the validity of Hawaii's political party requirementremains an open question, the U.S. Court of Appeals for the SeventhCircuit issued an interesting opinion that discusses Illinois' vacancyprocedures and the Seventeenth Amendment, brought about in that case bythe election of President Obama while he was occupying a Senate seat:Our analysis of the Seventeenth Amendment led to theconclusion that astate must hold an election each time that a vacancy occurs in itsSenate delegation, so that the people of the state can elect areplacement senator. To ensure that such an election takes place, theexecutive officer of the state is required by the Constitution to issuea writ of election. The timing and mechanics of the special election aregoverned by state law, as contemplated by the Elections Clause of theConstitution and the final phrase of the Seventeenth Amendment's secondparagraph. Finally, the Seventeenth Amendment permits the statelegislature to empower the state executive to fill a Senate vacancytemporarily by appointment, until a special election takesplace. Judge v. Quinn, No. 10-2836 (7th Cir. Sep.24, 2010). The Supreme Court declined to review the case.