January 8, 2021
House of Representatives Vacancies: How Are They Filled?
Vacancies in the office of U.S. Representative occur when
special House elections to coincide, if possible, with local
an incumbent Member dies, resigns, or leaves office for any
elections, including those for municipal and county
reason before the end of their term. Multiple special
governments, or special purpose other district-wide regional
elections to fill vacancies in the House of Representatives
elected bodies that are generally held in odd-numbered
typically take place in each Congress. The same procedures
years, during the first session of a Congress. By holding a
apply if a Representative-elect dies between the election
special election on the same date as other elections in the
and the day on which the new Congress to which they were
district, state and local governments can avoid the cost and
elected convenes.
logistical effort associated with conducting an election, for
example, establishing polling places, mobilizing election
Constitutional Provisions
workers, etc., on a one-time basis. They can also arguably
The Constitution provides for vacancies in the House of
expect greater voter turnout than for a free-standing
Representatives in Article I, Section 2, clause 4:
election.
When vacancies happen in the Representation from
Scheduling for Second Session Vacancies
any State, the Executive Authority thereof shal
Procedures governing vacancies occurring during the
issue Writs of Election to fill such Vacancies.
second session of a Congress differ from state to state, and
are largely dependent on the amount of time intervening
The Constitution thus requires that all House vacancies
between the vacancy and the next general election. For
must be filled by special election. State governors—“the
instance, if a House seat becomes vacant within six months
Executive Authority”—are authorized to issue the orders
of the end of the Congress, some states provide that the seat
for special elections. In contrast with the Senate, there is no
shall remain vacant for the balance of the term. Others may
constitutional provision for the appointment of interim
schedule special primaries to be held the same day as the
Representatives.
regular primary and special general elections to be held the
same day as the regular general election, when the seat is
Scheduling Special Elections
filled for the next Congress. In these cases, the winner of
The U.S. Code (2 U.S.C. §8a) authorizes state legislatures
the special general election is sworn in for the remainder of
to provide for scheduling of special elections to fill House
the term, unless Congress has adjourned sine die before
vacancies:
election day. If the same nominee wins both the
simultaneous special and regular general election, they will
the time for holding elections in any State, District,
also be a Representative-elect, sworn in when the new
or Territory for a Representative to fill a vacancy,
Congress convenes.
whether such vacancy is caused by the death,
resignation, or incapacity of a person elected, may
Winners of House special elections held, as noted above,
concurrently with those for the next Congress may not be
be prescribed by the laws of the several States and
sworn in as Representatives in the expiring Congress if that
Territories respectively.
Congress has adjourned sine die before election day. They
Responsibility for ordering a special election is thus vested
are, however, accorded the s tatus of incumbent
in the governors of the states, while scheduling is
Representatives for the purposes of seniority, office
prescribed in state law. Once a vacancy has occurred, most
selection, and staffing.
state laws set a window of time, or prescribe an exact
number of days after the vacancy occurs, in which
Scheduling Special Elections in
nomination procedures begin and the special election must
Extraordinary Circumstances
be held.
Following the terrorist attacks of September 11, 2001,
Congress enacted provisions in the U.S. Code (2 U.S.C.
Scheduling for elections for House vacancies that occur
§8(b)) for special elections to fill House vacancies in
during the first and second sessions of a Congress present
extraordinary circumstances. These are defined as occurring
different issues to state authorities.
any time the Speaker of the House of Representatives
announces that vacancies in House membership exceed
Scheduling for First Session Vacancies
100. Under these circumstances, the Code mandates that
State election authorities generally, though not always, seek
special elections to fill House vacancies shall take place not
to schedule special elections for House vacancies to
later than 49 days after the Speaker’s announcement, unless
coincide with some regularly scheduled election date in the
the regular general election for the House, or another
affected district. For vacancies occurring during the first
special election for the office involved, is scheduled to be
session of a Congress, this typically means coordinating
held within 75 days of the vacancy announcement.
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House of Representatives Vacancies: How Are They Fil ed?
Nominations
Staff Disposition
Nomination procedures for House of Representatives
House Rule II, cl. 2(i)(1) provides that “[t]he Clerk shall
special elections to fill vacancies vary widely among the
supervise the staff and manage the office of a Member,
states. Some states require a special primary election to
Delegate, or Resident Commissioner who has died,
determine the major party nominees, while minor party and
resigned, or been expelled until a successor is elected.” The
independent candidates generally qualify by filing petitions,
U.S. Code further provides that s taff of a deceased or
the required number of which is set by state law, to gain
resigned Representative are compensated until a successor
placement on the general election ballot. A plurality of
is elected to fill the vacancy, performing duties under the
votes is sufficient to win the nomination in most states, but
direction of the Clerk of the House, or until the term expires
some require a majority—50% or more of the votes cast—
(2 U.S.C §5324).
to win nomination in the primary. They include Alabama,
Arkansas, Georgia, Mississippi, Oklahoma, South Carolina,
House Vacancies in the 117th Congress
and South Dakota. In these states, if no candidate attains a
A President elected to an initial term may in some cases
majority, then a runoff, or second, primary is held at a later
nominate a number of incumbent Representatives to
date, in which the two candidates winning the most primary
executive branch positions, leading to eventual resignation
votes compete for the nomination. North Carolina provides
of the nominees and their replacement by successors in
for a runoff (termed a second primary in that state) if no
special elections. For instance, in 1993, incoming President
candidate receives more than 30% of the vote, and if one of
Bill Clinton nominated Representatives Les Aspin of
the candidates requests the second primary. Another
Wisconsin as Secretary of Defense, Mike Espy of
variation, the “top-two” primary, is used by California and
Mississippi as Secretary of Agriculture, and Leon Panetta
Washington: all candidates are listed on the same primary
of California as Director of the Office of Management and
ballot. The two candidates winning the most votes,
Budget. Upon Senate confirmation, they resigned from the
regardless of their partisan affiliations, advance to the
House, and the vacancies created by their resignations were
general election.
filled by special elections held on May 4, April 13, and
June 8, 1993, respectively.
Louisiana provides a system that combines, in some
instances, the primary and general election. In Louisiana,
At the time of this writing (January 8, 2021), President-
all candidates who qualify for ballot access compete in the
elect Joe Biden has indicated his intent to nominate the
primary election, in which a majority of votes is necessary
following incumbent House Members to executive
to elect. A candidate receiving 50% of the vote is declared
positions in his Administration: Representatives Marcia
elected, and no general election is held. If no candidate
Fudge of Ohio as Secretary of Housing and Urban
receives a majority, the two candidates receiving the most
Development and Deb Haaland of New Mexico as
votes, regardless of party affiliation, compete in a second
Secretary of the Interior. Their positions will require Senate
election, termed a general election. Louisiana mandates the
confirmation. Assuming confirmation, they would resign
all-parties primary for regular as well as special elections.
their House seats prior to taking executive branch office.
Texas provides for an all-parties special primary election,
Representative Cedric Richmond of Louisiana is to be
but only to fill House vacancies. All candidates qualifying
appointed Senior Advisor to the President and Director of
for placement on the ballot participate in the election, in
the Office of Public Engagement, a position that does not
which a majority is necessary to elect. A candidate
require Senate confirmation. At some appropriate time, he
receiving 50% of the vote is declared elected. If no
would also resign his House seat. Following their
candidate receives a majority, the two candidates receiving
anticipated resignations, the seats of all three in the House
the most votes, regardless of party affiliation, compete in a
would be filled by special elections, according to their
second election, termed a runoff in Texas.
respective states’ procedures.
Other states provide for nomination by party-established
In addition, the House of Representatives in the 117th
procedures, such as party congressional district caucuses
Congress convened on January 3, 2021, with one
and conventions, or meetings of party committees or
vacancy—Representative-elect Luke Letlow of Louisiana
interested party members in jurisdictions comprising the
died December 29, 2020. The vacancy in the seat to which
affected congressional district.
he was elected will be filled according to Louisiana’s
General Elections
special election procedures.
In nearly all states a plurality is sufficient to elect in general
Thomas H. Neale, Specialist in American National
elections to fill House vacancies. Georgia, as noted above,
Government
requires a majority to elect in all congressional and
statewide special elections. Louisiana requires a majority to
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elect within the context of its all-parties primary system, as
also noted above.


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House of Representatives Vacancies: How Are They Fil ed?


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