In my last column, Part One of this series, I examined a lawsuit challenging the Arizona state law scheme for holding a replacement election to fill the US Senate vacancy created by John McCain’s death last year. In particular, the plaintiffs in a pending federal district court case allege (with great force) that Arizona’s governor has to date failed to live up to his obligations under the Seventeenth Amendment to the US Constitution to issue “writs of election” to schedule a replacement contest and initiate the state election law machinery. The plaintiffs also allege (with less support from the language of the Amendment and relevant judicial authority) that Arizona has a federal obligation to hold such a replacement election as soon as possible rather than in November 2020, which is what Arizona law seems to call for.

Putting aside these particular arguments, in the space below I seek to highlight two additional aspects of the Arizona scheme for filling US Senate vacancies that I find constitutionally problematic: (1) the requirement in state law that a governor make temporary appointments; and (2) the state legislature’s specification that the governor is limited, in making temporary appointments, to persons of the same political party as the departed senator (in this case John McCain).

Relevant Text of the Federal Constitution and State Law

The Seventeenth Amendment of the Constitution provides, in crucial part:

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.

This language serves two purposes: (1) it tells state legislatures to prescribe the procedures for replacement elections and (2) it authorizes, but does not require, state legislatures to empower their governors to make temporary US Senate appointments so that the vacancies are filled until the replacement election.

But here’s the wrinkle: the Arizona statute seems to mandate that the governor use temporary appointment power the legislature has created, and also limits the governor’s choice to persons of the same political party with which the fallen senator was affiliated. Arizona Revised Statutes, § 16-222, provides:

For a vacancy in the office of United States senator, the governor shall appoint a person to fill the vacancy. That appointee shall be of the same political party as the person vacating the office. . . . If the person vacating the office changed political party affiliation after taking office, the person who is appointed to fill the vacancy shall be of the same political party that the vacating officeholder was when the vacating officeholder was elected or appointed to that office.

At first glance, it might seem to make sense to require the governor to fill vacancies and to pick people of the same political party as the departed senator; after all, death or resignation should ordinarily not upset the partisan balance of the Senate and the partisan wishes of the voters who elected the senators. Yet this perspective is likely incorrect. Indeed, the stronger legal position is that the Seventeenth Amendment prevents Arizona’s legislature from substantively constraining the governor’s choices in making a temporary appointment.

The Textual Argument Against the Arizona Statute

The Seventeenth Amendment’s plain language differentiates between a state “legislature” and a state “executive” authority, allowing a state legislature not to make or constrain any temporary appointments itself but only to “empower the [state] executive to make [the] appointment.” In other words, once a legislature empowers the governor to make temporary appointments, it may not then participate in appointment decisions.

“Empower” does not mean “require”; rather, it means “to create the power to do or not do something”—to facilitate or authorize. The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment’s words seem to speak only to possible gubernatorial powers, not any gubernatorial duties. So the first part of the Arizona statute—which says the Governor “shall” (rather than “may”) make an appointment—would seem to go beyond the power the Constitution gives to state legislatures.

The second part of the Arizona statute—that requires party consistency—is also undermined by the text of the Seventeenth Amendment. The text of the Amendment gives substantive power over appointments to the governor, not the legislature. That the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons is reinforced by the last five words of Section 2: “as the legislature may direct.” This clause refers to, and confirms, the legislature’s discretion as to the procedures (and also perhaps the timing) of any special popular election to be held to fill a vacancy. By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.

The drafters and ratifiers of the Amendment could very easily have included some phrase like “as the legislature has directed” or “subject to the legislature’s requirements” right after or before the clause referring to the governor’s statutorily created power to make appointments. Yet they did not. The actual language of the Amendment most strongly supports the inference that the drafters and ratifiers did not expect the state legislature to have a significant and ongoing role in the governor’s execution of his appointment power in these circumstances.

While the Amendment does permit state legislatures to simply not authorize the governor to make temporary Senate appointments at all, this power is not the same as, and does not subsume, the power to dictate who shall be appointed.

In sum, although state legislatures can deny governors the power to make temporary Senate appointments entirely, once they decide under the Amendment to grant the governor that power, they cannot then dictate how governors exercise it.

The Historical/Structural Case Against the Arizona Approach

History, too, supports this interpretation of the Seventeenth Amendment. The Seventeenth Amendment sought to address the problem of state legislatures and political parties being overly involved in determining the choice of US senators. Indeed, Progressives have had great distrust and skepticism with respect to the influence of political parties in the legislative process. Those who pushed for direct election of US senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies. This vision of party secrecy and backroom party deals cut by a few persons, who could not be counted on to represent the public’s interest, was often described in terms of party machines or party “bosses.” Senate historian George Haynes described that “[s]ometimes the [S]enatorship was meekly handed over [by the legislature] to a state boss, whose phenomenal skill in the manipulation of legislators was out of all proportion to his hold upon the voters.”

In 1911, Indiana Senator Albert J. Beveridge, speaking before the Senate on behalf of one of the many constitutional proposals of what became the Seventeenth Amendment, voiced this assessment of party influence and distortion:

Political parties . . . elect a legislature, and [the] majority in that legislature is not supposed, nor even permitted, according to the original theory of the Constitution, to select the best man in the State . . . . It must select a man of the party which elected the legislature . . . . So it comes to pass that Senators actually have been . . . selected by the “party managers” . . . . The party boss has become more potent than the legislature, or even the people themselves, in selecting United States Senators in more than one State.

Some modern observers see virtue in party consistency requirements because they may preserve important partisan balances. But in this context, arguments about partisan dynamics miss the point that governors (unlike political parties or even a groups of state legislators) are elected at large by the very people of the state in whom the Seventeenth Amendment vests ultimate power to select US senators. Governors—like US senators, but unlike state legislatures—are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering. Thus, there was, and is still today, a good reason for the Seventeenth Amendment’s textual preference for governors over state legislators: governors, more so than legislatures, represent the people of a state because governors are elected the exact same way in which the Seventeenth Amendment requires senators to be picked. In short, my proffered reading of the Seventeenth Amendment would harmonize its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

Legislative Constraints on the Governor Could Further Forestall Senate Replacements

The framers of the Seventeenth Amendment wanted to reduce stalemates and other glitches that resulted in long-term Senate vacancies. Indeed, persistent vacancies that injured both the underrepresented states and the Senate’s ability to easily transact business were among the most persistent complaints concerning the broken state legislative selection process replaced by the Seventeenth Amendment. Thus, facilitating prompt Senate replacements was one of the principal objectives of reform. It is true, of course, that state legislatures ordinarily would not want their states to be underrepresented in the Senate for long, which is why after the Seventeenth Amendment was enacted, almost every state has empowered its governor, on some terms or others, to make temporary appointments even before replacement elections can be promptly held.

But, for reasons described above, a reading of the Amendment that guarantees gubernatorial discretion in personnel choice is most likely to produce prompt filling of vacancies. By contrast, a reading that allows state legislatures to constrain governors (perhaps to the point that governors might not exercise the powers at all if they don’t like the constraints) could increase the likelihood that vacancies go unfilled until the election is held.

There may be complicated questions about who has standing (in federal or Arizona state courts) to raise the objections I discuss above, and also complicated questions about which parts of the Arizona statute might be severable, but on the merits (whether the matter would be heard by a court or by the Senate itself in deciding whether to seat someone appointed from Arizona), the two aspects of Arizona law I explore above are constitutionally troubling.