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Beginning and End of the Terms of United
States Senators Chosen to Fill Senate
Vacancies
Jack Maskell
Legislative Attorney
January 20, 2010
Congressional Research Service
7-5700
www.crs.gov
R41031
CRS Report for Congress
P
repared for Members and Committees of Congress
c11173008
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Beginning and End of the Terms of Senators Chosen to Fill Senate Vacancies
Summary
Under the Constitution, the Rules of the Senate, statutory law, and consistent Senate practice, an
individual elected to the United States Senate during a session of Congress to succeed an
appointed Senator may begin his or her term of office upon receipt by the Senate of “credentials”
in proper form from the state, and by taking the constitutionally required oath of office in open
Senate session. The appointed Senator who is being succeeded remains in office until the new
“Senator-elect” is qualified (i.e., is sworn in and seated as a “Senator” by the Senate).
If a newly elected Senator-elect has won an election to succeed an appointee during the time that
the Congress is in sine die adjournment, and thus is not able to present credentials to the Senate
and be seated, that Senator-elect is sworn in on the first day of the new session of Congress, but is
considered to have begun his or her term of office on the day after the election. The appointed
Senator in that case—in the case of an election during a sine die adjournment—is considered to
have served only until the day of election.
The formal Rules of the Senate require the receipt of “credentials” in proper form concerning an
individual presenting himself or herself for membership in the Senate before the oath of office is
administered. Such “credentials” are the election (or appointment) certificates signed by the
governor and the secretary of state of the state from which chosen. It should be emphasized that
under the Constitution, the official canvassing of votes, counting of military and other absentee
ballots, tabulation and certification of vote counts, and the final certification of election results are
administered and conducted under procedures established by the individual states. The actual
transmittal of the proper election certificate, and the timing of certification, is thus dependent in
the first instance on state laws and procedures.
The long-standing Rule of the Senate requiring proper certification from a state concerning the
state’s choice for Senator may be waived by unanimous consent, and has in the past on some
occasions for various causes and reasons relating to the delay of the transmittal of credentials in
proper form. This has allowed a Senator-elect to be sworn and seated by “unanimous consent or
without objection” prior to the time that the Senate had actually received the valid, required
credentials in physical form.
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Beginning and End of the Terms of Senators Chosen to Fill Senate Vacancies
he 17th Amendment to the United States Constitution provides that a vacancy in the United
States Senate is to be filled by election, but may also be filled temporarily, if authorized
T under state law, by a gubernatorial appointee who serves in the Senate until “the people”
fill the vacancy for the remainder of the term “by election.”1 In our system of federalism and
shared powers, the several states have the initial authority (with a reserved, superseding authority
in Congress) over the “Times, Places, and Manner” of elections of Senators and Representatives,
including special elections for the Senate.2 This authority of the states extends to procedural and
administrative aspects of elections such as officially canvassing the vote in local jurisdictions,
counting military and other absentee ballots, and compiling and officially certifying the results of
the election.3 The official certification of the results of a special election by the state officials,
under state law and procedures, thus determines, initially, the timing for the Senator-elect to
present the proper “credentials” required by the Senate for seating.
Under Article I, Section 5, clause 1 of the Constitution, the Senate is the final judge of the
elections, returns, and qualifications of its own Members, and controls the seating of its
Members.4 Furthermore, the Senate (in a similar manner as the House) has the express
constitutional authority to make its own rules for its proceedings.5 To seat a “Senator-elect” and
make such person a “Senator,” the Senate requires the presentation of proper “credentials” from
the person claiming the seat, and the taking of the constitutionally required oath of office.6 Such
proper “credentials” are the election certificates duly signed by the governor and secretary of
state.7 This long-standing Senate Rule can be waived by unanimous consent, and has been so
waived on several occasions in Senate history. In such instances there may have been a delay or
interruption in the mails, or some other technical or justifiable reason for the Senate, by
“unanimous consent or without objection,” to swear in a Senator before the proper credentials
were physically received by the Senate.8
If the election to fill the remainder of the Senate term occurs during a session of Congress, the
sitting Senator who had been appointed to fill the original vacancy serves until the new Senator is
elected and “qualified.”9 “Qualified” here is used as a verb, and simply means taking the
1 “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.”
2 U.S. CONST., Art. I, Sec. 4, cl. 1.
3 Smiley v. Holm, 285 U.S. 355, 366-367 (1932); 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).
4 Roudebush v. Hartke, 405 U.S. 15 (1972); Reed v. County Commissioners, 277 U.S. 376, 388 (1928); Morgan v.
United States, 801 F.2d 445 (D.C. Cir. 1986). See discussion in Justice Joseph Story, Commentaries on the Constitution
of the United States, Volume II, § 831, at pp. 294-295 (1833)).
5 Article I, Section 5, cl. 2; United States v. Ballin, 144 U.S. 1 (1892).
6 Senate Rule II; Riddick and Frumin, Riddick’s Senate Procedure, Precedents and Practice, S. Doc. No. 101-28, 101st
Cong., 2d Sess. 696-699, 699-702, 704-710 (1992) [hereinafter Riddick’s Senate Procedure]. See, for example, in the
House, discussion in Deschler’s Precedents of the U.S. House of Representatives, Ch. 2, § 3, p. 98, § 6, pp. 131-132,
and Ch. 9, § 47, p. 481: “[E]lection does not, of itself, constitute membership.... Neither do election and return create
membership ...,” citing to a committee report (H.Rept. 1431, 73rd Cong., 2d Sess. (1933)), and the election case of
Hammond v. Herrick, 1 Hinds’ Precedents § 499.
7 Senate Rule II, para. 3.
8 See Riddick’s Senate Procedure, supra at 707-708.
9 See Riddick’s Senate Procedure, supra at 710; and Robert Dove, The Term of A Senator – When Does It Begin and
End? S. Doc. 98-29, at 10-11 (Revised 1984).
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Beginning and End of the Terms of Senators Chosen to Fill Senate Vacancies
constitutionally required oath of office given by the Senate10 (i.e., being sworn and seated because
the Senator-elect is determined to have met the qualifications for office of age, citizenship, and
inhabitancy), and is shown by the credentials presented to be “duly elected.”11
If the election to fill the remainder of the Senate term occurs when the Senate is adjourned sine
die, the newly elected Senator would be considered, for purposes of when his or her term begins,
to be entitled to the seat the day after election. A sine die adjournment is when Congress has
adjourned without a specific day on which it will return that session, and indicates that Congress
is not scheduled to meet again until a day established by law (or the Constitution) for the next
session or the next Congress. If in sine die adjournment, the oath of office could not be taken in
open session and the credentials could not be presented, and so the Senator-elect is given the oath
of office and seated as a Senator on the first day of the next session of Congress, but is considered
to have started his/her term the day after the election. In that case, that is, in the case of an
election to replace the temporary appointee which takes place during a sine die adjournment, the
Senator who had been appointed serves only until the day of election.12
As explained by the Senate Parliamentarian Robert Dove, quoting from a Resolution
unanimously adopted by the Senate (S.Res. 129, 85th Congress), “Senators elected during a
session to succeed appointees shall commence on the day they qualify,” that is, when the Senator-
elect is “duly qualified by taking, in open Senate, as provided by Rule II, the oath required by the
Constitution and prescribed by law.”13 The principle behind adopting this resolution was
explained by the majority leader, Senator Johnson, to clear up misconceptions and to emphasize
that “The appointee holds the office and draws the pay until the Senator-elect takes the oath, as
above stated.”14
When in sine die adjournment, however, the newly elected Senator’s term is considered to have
started the day after the election, and the appointed Senator’s term to have ended on election day.
The issue arose, for example, in 1938-1939 in the context of an election, held after the Senate had
adjourned sine die, to fill a Senate vacancy which had previously been filled by a temporary
appointment of the governor. The Tennessee governor’s appointee in May of 1937, George Berry,
served only “until November 8, 1938, when a successor, Tom Stewart, was elected to fill the
remainder of the term.”15 Stewart was a district attorney in Tennessee and did not actually present
himself and take his seat until January 16, 1939. The out-going appointee, Senator Berry, wanted
to be compensated as Senator through the time until the new Senator-elect was qualified and
seated. The Senate determined on February 2, 1939, however, in accordance with the Judiciary
Committee’s findings and the statutory provisions, “that Berry’s term had ended on the day of
Stewart’s election, November 8, 1938” because the Senate had been in sine die adjournment at
the time of the election.16 Similarly, in 1957, the Senate adopted a resolution noting that the term
10 U.S. CONST., Art. VI, cl. 3. See 5 U.S.C. § 3331.
11 Note Powell v. McCormack, 395 U.S. 486 (1969). The certificate of election is considered prima facie evidence of
the fact of proper election. Objections can be raised to the “qualifications” or the “election” of a Senator-elect at the
time of swearing in, and a decision eventually rendered by the Senate on such questions under its authority at Art. I,
Sec. 5, cl. 1. See, generally, CRS Report R40105, Authority of the Senate Over Seating Its Own Members: Exclusion of
a Senator-Elect or Senator-Designate, by Jack Maskell.
12 See now 2 U.S.C. § 36
13 Dove, The Term of A Senator – When Does It Begin and End? supra at 10.
14 Dove, The Term of A Senator – When Does It Begin and End? supra at 10.
15 Senate Election, Expulsion and Censure Cases, 1793-1990, supra, Case 120, p. 362-363.
16 United States Senate Election, Expulsion and Censure Cases, 1793-1990, supra, p. 363.
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of service of the governor’s appointee, Senator Thomas A. Wofford, terminated on election day,
November 6, 1956, and not on January 2, 1957, because Strom Thurmond won the election for
the unexpired term on that November 6 election date, and that Senator Thurmond’s renewed
service began on the day after election, November 7, 1956, and not January 3, 1957, because the
Senate had adjourned sine die on July 27, 1956.17 As noted in the document updated by
Parliamentarian Robert Dove, quoting the majority leader, Senator Johnson, “Numerous cases
have arisen since the adoption of the law in 1935 where persons were elected to succeed
appointees while the Senate was in sine die adjournment, and the above rule has been uniformly
followed.”18
The statutory provisions of the United States Code with regard to compensation of Senators,
referenced in the above precedent, now specifically set out the dates for compensation of those
appointed to fill Senate vacancies, and those elected to fill the remaining term in a vacancy. The
statute expresses the principle that a gubernatorial appointee to fill a vacancy serves only
temporarily until the remainder of the unexpired portion of the original term is filled by the
election and qualification of his or her successor, or if the election is during a sine die
appointment, until election day. The provision now codified at 2 U.S.C. § 36, states
Salaries of Senators appointed to fill vacancies in the Senate shall commence on the day of
their appointment and continue until their successors are elected and qualified: Provided,
That when Senators have been elected during a sine die adjournment of the Senate to succeed
appointees, the salaries of Senators so elected shall commence on the day following their
election.
Salaries of Senators elected during a session to succeed appointees shall commence on the
day they qualify: Provided, That when Senators have been elected during a session to
succeed appointees, but have not qualified, the salaries of Senators so elected shall
commence on the day following the sine die adjournment of the Senate.
When no appointments have been made the salaries of Senators elected to fill such vacancies
shall commence on the day following their election.
In sum, if the Senate is in session, a Senator-elect chosen at an election to fill an unexpired Senate
term previously filled by a gubernatorial appointee may present himself or herself to take the oath
of office and be seated when credentials in proper form are received by the Senate (i.e., an
election certificate signed by the governor and secretary of state). That Senator is entitled to the
salary of Senator on the day he or she so qualifies, and the term and service (as well as the pay) of
the Senator/appointee (who is being replaced) continues until the successor is “elected and
qualified.” However, if the Senate has adjourned sine die when a Senator-elect is chosen at an
election to fill an unexpired Senate term previously filled by a gubernatorial appointee, then the
term of the appointee ends on the election day of his or her successor, and the newly elected
Senator is considered to have the office (and is entitled to pay) the day after the election, even
though the Senator could not be sworn and seated until the first day of the next session of
Congress.
17 Riddick’s Senate Procedure, supra at pp. 1252-1253; Dove, The Term of A Senator – When Does It Begin and End?
supra at 4 – 8.
18 Dove, The Term of A Senator – When Does It Begin and End? supra at 9.
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Beginning and End of the Terms of Senators Chosen to Fill Senate Vacancies
Author Contact Information
Jack Maskell
Legislative Attorney
jmaskell@crs.loc.gov, 7-6972
Congressional Research Service
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