Order Code RL31338
CRS Report for Congress
Received through the CRS Web
Disqualification, Death, or Ineligibility of the
Winner of a Congressional Election
March 20, 2002
American Law Division
Congressional Research Service ˜ The Library of Congress
Disqualification, Death, or Ineligibility of the Winner of a
On several occasions, including a Senate race in 2000, a congressional candidate
on the ballot for the general election has died within such proximity to election day
that there was not sufficient time under State election-administration procedures to
change the ballot and substitute another candidate. Leaving the name of a deceased
candidate on the ballot has raised questions and criticisms in some quarters concerning
State authority to issue a “final” ballot and to decline to add or substitute other
candidates at some point prior to an election; whether votes for the deceased
candidate are “legal,” or rather, should not be counted, since the deceased candidate
is not “qualified” to serve in the office; and whether a “vacancy” in the office can be
created, in effect, prospectively, when and if the ineligible candidate receives the most
votes, or whether a new “special election” must proceed immediately.
Under the States’ constitutional “Times, Places and Manner” authority over
federal elections, the States may establish ballot procedures and administrative
requirements. Courts have noted that States have a “compelling” interest in setting
deadlines and in finalizing the ballot “so that general election ballots can be properly
and timely prepared and distributed,” and have thus found that there is no legal or
constitutional problem with a State “finalizing” its ballot and refusing to withdraw,
add or substitute names on the ballot within a reasonable time-frame prior to an
election. Such State deadlines for finalizing the ballot are not only common, but are
seen as absolute administrative necessities for orderly elections, and for the prevention
of disenfranchisement of military and other absentee voters.
With ballot deadlines a common administrative requirement in the States, it is not
unprecedented for a candidate to die in such proximity to an election that the ballots
have been finalized, resulting in the deceased candidate’s name remaining on the ballot
for the election. Under the majority “American Rule,” followed in most of the States
for their non-federal offices, and expressly adopted by both the House and the Senate
for judging the elections of their own Members to Congress, votes for the deceased
candidate are not illegal, improper, or “thrown away” (such that the second-place
vote-getter is elected), nor are the elections ignored and considered non-events;
rather, a “win” by the deceased candidate creates, and is generally considered an
indication of the voters’ preference for, a temporary “vacancy” in the office.
Under the Constitution, vacancies in the House are filled by the issuance of
“writs of election” by the Governor of the State for a special election. For vacancies
in the Senate, however, the Seventeenth Amendment instructs the Governor of the
State to issue writs of election but, in the alternative, the Governor, if authorized by
State law, may make a “temporary appointment” until a later election to fill the
remainder of the term, as directed by the State legislature. The Seventeenth
Amendment, its history, and express judicial interpretation indicate that the States
have discretionary authority to provide for a temporary appointment of a Senator by
the Governor until a future election, such as a regularly scheduled state-wide election,
and that the States are not required to hold a more immediate “special election” to fill
a Senate vacancy, regardless of when the vacancy arises.
Introduction and Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Raised Concerning Deceased Candidate on the Ballot,
and Such Candidate Receiving the Most Votes . . . . . . . . . . . . . . . . . 4
State Authority Over Election Procedures, Administration . . . . . . . . . . . . . 5
Senate and House Decisions on “Qualifications” . . . . . . . . . . . . . . . . . . . . 9
Judging Elections In Congress and the “American Rule” . . . . . . . . . . . . . 11
Seventeenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Disqualification, Death, or Ineligibility of the
Winner of a Congressional Election
This report addresses the issue of what happens when, in an election for the
United States Senate or House of Representatives, the electorate of a State or of a
congressional district gives the most votes to a candidate on the ballot who, because
of constitutional disqualification, death, or other disability, is ineligible to serve in the
Senate or in the House.
Introduction and Background
If a candidate who has been elected to the United States House of
Representatives or the United States Senate subsequently dies (prior to taking the
oath of office), or later acquires or has discovered a legal disability such that he or she
is no longer eligible to serve or to be seated in the House or the Senate, then
precedent and practice indicate that a “vacancy” in that office would be established.
Such a vacancy would then be filled according to the United States Constitution.
However, if a candidate dies prior to a general election for the House or Senate,
but because of the imminence of the election the candidate’s name remains on the
ballot under State election law procedures, and that deceased candidate then receives
the most votes in the election, should this be treated as other than a “vacancy” in the
office which will occur at the beginning of the congressional session?
As expressly provided in the United States Constitution, at Article I, Section 5,
cl. 1, the House and the Senate each “shall be the Judge of the Elections, Returns and
Qualifications of its own Members ...." In judging congressional elections, the
overwhelming weight of precedent in both the House and the Senate has been to
follow the so-called “American Rule,” whereby an absolute disability or ineligibility
of a candidate receiving the most votes in an election (the “majority candidate”)
creates a “vacancy” in the office, which is then filled according to the Constitution.
The next highest qualified vote-getter in such an election is not deemed by the House
or Senate to be entitled to the seat under this “American Rule” (unlike under the socalled “British Rule”), nor is the entire election considered a “nullity” (such that a new
election or “do-over” must proceed immediately).1 Under congressional precedent
and practice, it has not mattered whether the majority candidate was actually ineligible
or not qualified before or after the time of the election, or whether the voters knew
of such ineligibility, death or disqualification before or at the time of the election – the
Riddick and Fruman, Riddick’s Senate Procedure, Precedents and Practice, S. Doc. No.
101-28, 101st Cong., 2d Sess. 701 (1992); 2 Deschler’s Precedents of the U.S. House of
Representatives, Ch. 7, § 9, at 96; see discussion of “American Rule” versus “English Rule,”
in Smith v. Brown (40th Cong.), Rowell’s Digest of Contested Election Cases, 220-221.
“vacancy” was deemed created, and filled in the manner prescribed in the United
As to vacancies in the United States Senate, the Seventeenth Amendment to the
Constitution provides that when there are vacancies in the representation of any State
in the Senate, the Governor of the State “shall issue writs of election to fill such
vacancies”; however, in the alternative, if expressly authorized by that State’s
legislature, Governors may make “temporary appointments” to fill a Senate seat until
an election is held to fill the remainder of the term, as directed by State law.2 In the
case of vacancies in the House of Representatives, the Constitution does not authorize
the Governor of a State to fill a seat on an interim basis, but rather instructs only that
“Writs of Election” for a special election shall be issued by the Governor.3 The timing
of the election to fill vacancies for Representative or Delegate, and thus how long the
vacancy will continue, is generally within the discretion of the individual States as a
matter of State law.4
On the several occasions of the death of a candidate for the United States House
of Representatives so close to the election that a new candidate could not qualify in
time to be printed on the general election ballot under applicable State election
administration laws – and that deceased candidate subsequently received the most
votes in the election (or when the majority candidate on the ballot was otherwise
constitutionally ineligible for the office) – the so-called “American Rule” was applied.
That is, the receipt of the most votes by the deceased or otherwise ineligible candidate
on the ballot was deemed to have created a vacancy in the office of Representative,
which was then filled as prescribed under the United States Constitution for vacancies
in House seats, that is, through the issuance of “writs of election” for a special
election. Representatives Hale Boggs (Louisiana) and Nick Begich (Alaska) were lost
and presumed dead in an airplane crash in Alaska on October 16, 1972, less than a
month before their general elections. Under State election procedures, their names
remained on the ballot, and they received the most votes in their respective general
elections, whereupon vacancies were declared, and special elections to fill the
vacancies were held.5 The living candidate with the next highest vote total, that is,
the “runner-up” in the regular general election on the ballot, or from write-ins
United States Constitution, Amendment 17. “A vacancy in the Senate may be filled either
by a writ of election or by state executive appointment under the Seventeenth Amendment.”
Deschler’s Precedents, supra at Ch. 8, § 9, p. 250.
Article I, Section 2, cl. 4. For a general discussion on the process of filling House and Senate
vacancies, see Neale, “House and Senate Vacancies: How Are They Filled?” CRS Report 971009.
2 U.S.C. § 8. See Jackson v. Ogilvie, 426 F.2d 1333 (8th Cir. 1970), cert. denied, 400 U.S.
833 (1970), on mandatory duty of Governor to issue writ of election.
Washington Post, November 9, 1972, at A25; Washington Star, December 7, 1972, at A16;
Washington Post, December 8, 1972, at A7; New York Times, December 13, 1972, at 48; 2
Deschler’s Precedents, Ch. 8, § 9.5; Congressional Quarterly, Congress and the Nation,
Volume III, 1969-1972, at 24. A “vacancy” is generally announced by the executive of a
State, as incident to the procedures for issuing writs of election for a special election, but may,
where appropriate, be formally announced by the House with notification sent to the
Governor. Deschler’s Precedents, supra at Ch. 8, §9.
(Representative Boggs was unopposed), was not declared the winner. On October
7, 1962, Representative Clement Miller of California died also in a plane crash shortly
before the 1962 general congressional election. As reported, “[u]nder California law,
it was too late for the Democratic party to place a new nominee on the ballot for the
November 6 election,” and Representative Miller’s name remained on the ballot.6
When he received the most votes, a “vacancy” was declared in the seat, and filled
according to the Constitution.
Similarly, in the one instance in the Senate when a candidate who had qualified
for the ballot as a major party candidate for the Senate died prior to the time of the
general election, but after the time established by State law for finalization of the
ballot, and who then received the most votes in the election, a “vacancy” in the office
of United States Senator was deemed to have occurred in that State, and such
vacancy was filled as prescribed in the United States Constitution and State law, that
is, by an interim appointment by the Governor. Former Governor Mel Carnahan of
Missouri, the Democratic nominee for Senator, died in a plane crash on October 16,
2000, three weeks before the general election. Under Missouri election law, the
names of deceased candidates remain on the ballot if they die so close to the election
that the filing deadline, or the time for political parties to submit substitute candidates,
has passed.7 The Missouri statute then states expressly what is understood as the socalled “American Rule,” that is, “if a sufficient number of votes are cast for the
deceased candidate to entitle the candidate to ... election had the candidate not died,
a vacancy shall exist ... in the office to be filled in the manner provided by law.”8 The
acting Missouri Governor had indicated after the candidate’s death that if the
deceased candidate received the most votes, the Governor intended to appoint the
candidate’s wife, Jean Carnahan, to fill the vacancy such election result would create.9
After the Missouri Board of Canvassers certified that the deceased candidate, Mr.
Carnahan, had in fact received the most votes in the election, the Governor formally
announced on December 4, 2000, that he was appointing, effective January 3, 2001,
the deceased candidate’s widow, Mrs. Jean Carnahan, to fill the vacant seat until the
next general election for the remainder of the term.10 The credentials of the
Governor’s appointee, Mrs. Carnahan, were accepted by the Senate, and she was
given the oath of office and seated without objection in the Senate on January 3,
1962 Congressional Quarterly Almanac 25-26.
Annotated Missouri Statutes, §§ 115.379; 115.363, para. 3. A political party may submit
a substitute party candidate for the deceased candidate if the original nominee dies “at or
before 5:00 p.m. on the fourth Tuesday prior to the general election.” §115.363, para. 3(1).
Annotated Missouri Statutes, § 115.379, para. 1.
See Washington Post, October 31, 2000, at A1.
Washington Post, December 6, 2000, at A6. See Annotated Missouri Statutes, § 105.040.
Congressional Record, January 3, 2001, at S 3 (daily edition), credentials accepted; Id. at
S 5 (daily edition), oath of office given and Member-elect seated without objection.
Issues Raised Concerning Deceased Candidate on the Ballot,
and Such Candidate Receiving the Most Votes
During the most recent case of the 2000 Senate race in Missouri, there were
arguments raised in certain quarters that it was in some way unconstitutional for the
State to allow the name of a deceased candidate to remain on the ballot for United
States Senator, regardless of the timing of the candidate’s demise in relation to the
election; and that because the deceased candidate on the ballot could not actually hold
the office of United States Senator (being deceased, he was not an “inhabitant” of the
State as required by Article I, Section 3, cl. 3), that either the election in which the
deceased candidate received the most votes should be ignored or set aside and a new
election held immediately, or that the minority candidate, as being the qualified
candidate who received the most votes, should win.12
These arguments, in the first instance, would appear to call into question the
viability and constitutionality of a State’s authority to set a specific deadline for
finalizing the ballot, that is, a certain time or date prior to the day of an election, after
which the ballot for that election could not be changed to add, remove or substitute
the names of candidates. Secondly, these arguments would appear to press the socalled “British Rule” upon the Senate in judging the elections and qualifications of its
Members, whereby the will of the plurality or majority of the voters of the State
would be disregarded either by acting as if the election did not occur, or by not
counting the votes cast for the deceased or otherwise ineligible candidate and seating
the minority candidate.
Finally, certain arguments were forwarded that even if it had not been improper
to allow the deceased candidate’s name to remain on the ballot when the death of the
candidate occurred in such proximity to the election, the State should not be allowed
to treat as a “prospective vacancy” the death of the candidate who remains on the
ballot. Under such argument, if the deceased candidate received the most votes, the
Governor would not be able to make a temporary appointment to fill the “vacant” seat
under the Seventeenth Amendment, even if expressly authorized under the laws of the
State as specifically provided for in the Seventeenth Amendment, but rather could
only issue writs of election for a special election to fill vacancies in the office of
United States Senator which occur by virtue of the election of a disqualified
Brooks Jackson/CNN, “Republicans Could Block Carnahan’s Widow if She Wins Senate
Seat,” October 31, 2000 (CNN.Com); Robert Novack, Chicago Sun-Times, October 30,
2000, at 33: “[A] national GOP leader told me flatly: ‘Jean Carnahan will never be seated in
the U.S. Senate’”; Kevin Murphy, Kansas City Star, “GOP Denies Plan to Challenge a
Carnahan Election,” November 01, 2000; David Thibault, CNSNews.com, “Constitution
Party Will Challenge Carnahan Election in Missouri,” November 9, 2000.
Viet D.Dinh, “Dead Men Can’t Win,” The Wall Street Journal, November 9, 2000, at A26.
State Authority Over Election Procedures, Administration
As to a State’s authority to establish a deadline where the ballot is “fixed” such
that no new or substitute candidates could be added immediately prior to an election,
it should be noted initially that a division of jurisdiction under our federal system
occurs in the case of elections to federal office. In the first instance, the terms of
federal offices and the qualifications of candidates eligible for federal offices are
established and fixed by the agreement of the States within the instrument which
created those federal offices, that is, the United States Constitution, and are
unalterable by the Congress or by any State unilaterally.14 The Constitution expressly
provides, however, that the individual States generally have the authority to
administer elections, even ones for federal congressional office,15 while at the same
time expressly providing that each House of Congress has the authority to be the final
judge of the results of those elections.16 Furthermore, the Constitution expressly
provides that each House of Congress is to be the judge of the three constitutional
qualifications for office of the Members-elect in those elections, that is, the age,
citizenship and inhabitancy in the State of the Members-elect.
Under the States’ “Times, Places and Manner” authority in the Constitution, the
States may promulgate regulatory and administrative provisions over the mechanics
and procedures even for federal elections within their States regarding such things as
forms of the ballots, “ballot access” by candidates (including new party or
independent candidates), voting procedures, and the nominating and electoral process
generally, to prevent election fraud, voter confusion, ballot overcrowding, the
proliferation of frivolous candidates, and to facilitate proper election administration.17
Legitimate "ballot access" procedures, including filing requirements, filing deadlines,
a show of qualifying support by new or minor party or independent candidates, “sore
loser” laws and other restrictions on cross-filing, are generally within the State’s
purview to “regulate[ ] election procedures” to serve the State interest of “protecting
Powell v. McCormack,395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779 (1995); Cook v. Gralike, 531 U.S. 510 (2001).
Article I, Section 4, cl. 1: “The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such Regulations, except as to the Places of
Article I, Section 5, cl. 1:"Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members ...."
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); Williams v. Tucker, 382 F. Supp. 381, 387-388
(M.D.Pa. 1974). Requirements for “ballot access,” in addition to the requirement that they
impose no substantive, new qualifications to federal office, must not violate equal protection
provisions of the Constitution by impermissibly discriminating against new or independent
candidates, nor impermissibly infringe upon First Amendment rights of voters to associate
freely and express their political opinions through support of their chosen candidates.
the integrity and regularity of the election process....,” and are not impermissible
additional qualifications for federal office.18
As part of these administrative duties involving ballot access, preparation and
printing of the ballots, a State must by necessity, because of the exigencies of time and
duties, limit or establish a time-frame or deadline by which the ballot must be “set” or
finalized, that is, a reasonable time before the general or primary election when no
more candidates may be placed on the ballot or programmed into the voting machines.
Courts have noted that States have a “compelling interest” in setting deadlines and in
finalizing the ballot “so that general election ballots can be properly and timely
prepared and distributed.”19 One of the consequences of not having a “set” ballot at
some reasonable point prior to an election (and of allowing last-minute changes in the
candidates on the printed ballot and on voting machines), would be the
disenfranchisement of military and other absentee voters, since such last-minute
changes would not allow sufficient time before election day to prepare, print, mail out
and then to receive back by mail new absentee ballots with such changes.
As found by one federal court, with an election a “mere five weeks away” even
if plaintiffs had prevailed on the merits of their arguments against their exclusion from
the ballot, the court would have still refused to require the State to change its ballots
by including petitioners’ names, since the court recognized the overriding
administrative necessities of deadlines to insure “time available for election officials
to complete their election preparations” before the election.20 The court noted the
“risk [of] substantial disruption of the electoral process” that could ensue by changing
a ballot after the State-established administrative deadline for finalization of those
ballots, and noted the “tight schedule” of election officials, and the myriad duties and
responsibilities that are valid administrative reasons for reasonable deadlines for
Last minute voter registration, processing of many absentee ballot requests,
supervising the printing of voting machine ballots, sample ballots, tally sheets, and
instruction sheets, instruction classes for election judges and clerks [footnote:
mailing of absentee ballots and classes for election judges and clerks have already
begun], final preparation of voter lists and signature cards, and distribution of
voting machines and supplies remain to be accomplished before [the] November
Courts have thus been loathe to require or allow parties to force changes to
ballots close to an election, that is, at the “eleventh hour,” with an election “close at
hand,” or with “the imminence of election,” because of “the potential for seriously
See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-835 (1995), comparing
legitimate “ballot access” provisions as in Storer v. Brown, supra, with impermissible
additional qualifications for federal office, such as individual State-imposed term limits.
Whig Party of Alabama v. Siegelman, 500 F.Supp. 1195, 1205 (D.C. Ala. 1980). These
deadlines may not be unreasonable and discriminate unfairly in favor of major party
candidates over minor or new parties or independent candidates.
Maddox v. Wrightson, 421 F. Supp. 1249, 1252 (D.C. Del. 1976).
Id. at 1252.
disrupting the State’s electoral process.”22 With an election “less than three weeks
away,” a federal court refused to require the changing of a ballot to add petitioners’
names, even on a strong First Amendment showing by petitioners, since “much of the
ballot and voting machine preparation” had already taken place, and there needed to
be a balancing and a proper weight given to the State’s needs and interests in an
“orderly” election, including the prevention of the “possible disenfranchisement of
absentee and military voters caused by eleventh hour changes to the ballot.”23 Justice
Marshall, on circuit, turned down on October 1 a request to order names to be printed
on a ballot for an upcoming November election citing, among other reasons, the
State’s concern for the potential “chaotic and disruptive effect upon the electoral
process,” since the “Presidential and overseas ballots have already been printed; some
have been distributed. The general absentee ballots are currently being printed.”24
The length of time before the election of a deadline which fixes the ballot, in
relation to the administrative tasks that must be accomplished during that time, is
generally relevant in judging the reasonableness and necessity of such deadline. The
courts have noted that overly long deadlines for the filing of petitions by candidates,
such as March or April deadlines for a November election, may not be of such a
necessity as to overcome Fourteenth Amendment and First Amendment complaints
of unfair treatment of supporters of those candidates who must file petitions to gain
ballot access (as opposed to nominated party candidates who had much later
deadlines).25 In the context of a deceased candidate, it is conceivable or at least
arguable, that an issue of this nature could arise, for example, if a deceased Senatorial
candidate whose name remains on the ballot is of a different political party from that
of the Governor of the State, and if there is an unusually long period of time before
the general election when the ballot is “fixed” by State law. In such a situation voters
affiliated with the deceased candidate’s party might argue that they have no choice on
the ballot to select someone of their own political persuasion for Senator, at least for
the “temporary” period before the next election to fill the term. That is, just as a vote
for the other candidate on the ballot is a vote for someone from the other party, a vote
for the deceased candidate of their own party may also be choosing someone from the
NAACP v. New York, 413 U.S. 345, 369 (1973); Valenti v. Mitchell, 962 F.2d 288 (3rd Cir.
1992); Smith v. Board of Elections, 586 F. Supp. 309, 312 (N.D. Ill. 1984).
Valenti v. Mitchell, supra at 301.
Fishman v. Schaffer, 429 U.S. 1325, 1330 (1976). The State election procedure in question
provided a filing deadline for petitions of nine weeks before an election.
Anderson v. Celebrezze, 460 U.S. 780 (1983) (Ohio filing deadline in March for
independent candidates not justified by State administrative need for so much time to verify
petition signatures); New Alliance Party of Alabama v. Hand, 933 F.2d 1568, 1574 (11th Cir.
1991)(April deadline for new and minor party candidates not justified as “... evidence tends
to show that the State would be able to place the name of a candidate on the ballot at a fairly
late date without unduly impairing the administrative task of printing the ballot ....”);
McCarthy v. Kirkpatrick, 420 F. Supp. 366, 374 (W.D.Mo. 1976), deadline of 188 days
before election for independent candidates to file petitions was too long, as State of Missouri
could conceivably add or take names off ballot as late as September for a November election;
McCarthy v. Austin, 423 F. Supp. 990, 999 (W.D. Mich. 1976), ordering the placement of
a name on the ballot on August 27 would not “seriously disrupt [State] preparations for the
general election” in November.
other party, since the Governor would most likely appoint someone from his own
political party to fill the “vacancy.” There may in such cases be a need to balance the
constitutional rights and interests of voters and supporters of the political party of the
deceased candidate,26 with the right of the State to finalize its ballot for administrative
purposes and the reasonableness and necessity of those time deadlines to perform
such administrative duties as printing and distribution of ballots, including absentee
and overseas ballots, preparing and programing voting machines, preparing voter
instructions and sample ballots, and training of poll workers and officials.27
In sum, there has been found no legal or constitutional problem with a State
“finalizing” its ballot and refusing to add, substitute or withdraw names from the
ballot within a “reasonable” time-frame in proximity to an election. Such ballot
deadlines are not only common in the States, but are seen as absolute administrative
necessities for fairness and orderly elections, and for the prevention of
disenfranchisement of military and other absentee voters, all of which the courts have
recognized as compelling State interests. Unfortunately, it is therefore not
unprecedented nor uncommon for a candidate to die in such proximity to an election
that the ballots have already been finalized, and to have that deceased candidate’s
name remain on the ballot for the election. Under the majority “American Rule,”
recognized and followed by both the House and the Senate for judging the elections
of their Members, as well as most of the States for their own non-federal offices,28
votes for the deceased candidate are not illegal, improper, “thrown away,” or
otherwise deemed to be nullities, nor is the election considered a non-event, but
rather, if the deceased candidate receives the most votes, such expression is
considered indicative that the majority or plurality of the voters favored the creation
of a temporary “vacancy” in the office, to be filled according to the Constitution and
the laws of the State.
The issue, in an imminent federal election, concerning the remaining on the ballot
of the name of a deceased candidate is clearly not whether the candidate who has died
is, or is not now, “qualified” to “be a Senator” under Article I, Section 3, clause 3, or
a Representative under Article I, Section 2, clause 2 of the United States Constitution.
Obviously, the deceased candidate could not and will not serve in or hold the office
to which he or she had aspired while alive; nor has it ever been suggested that a State
intended to issue “credentials” to the deceased candidate from the State to present the
Note, e.g., arguments of supporters of minor party candidates left off ballot in Williams v.
Rhodes, 393 U.S. 23 (1968).
Such constitutional considerations were not present in the case of the 2000 Missouri Senate
race, however, as the Governor was of the same political party as the deceased candidate and
indicated that he would appoint a member of that party (the candidate’s spouse) if the
deceased candidate received the most votes.
133 ALR 319, 321, “Deceased or disqualified person, result of election as affected by votes
cast for”; see, e.g., Evans v. State Election Board, 804 P.2d 1125 (Okla. 1990), citing,
among other supporting cases: Petition of Keogh-Dwyer, 256 A.2d 314, 318 (N.J. 1969);
Jackson v. County Court, 166 S.E.2d 554 (W.Va. 1969); Saunders v. Haynes, 13 Ca. 145
(1859); Derringe v. Donovan, 162 A. 439, 441 (Pa. 1932); Ingersoll v. Lamb, 333 P.2d 982
(Nev. 1959); Tellez v. Superior Court, 450 P.2d 106 (Ariz. 1969); Banks v. Zippert, 470
So.2d 1147 (Ala. 1985).
issue of “qualifications” to the House or Senate in an effort to seat the deceased
candidate. As far as the State’s participation in the process is concerned, however,
the candidate was qualified (as certified) when placed on the ballot, no timely contests
were filed to challenge the candidate’s qualifications and ballot access at that time,
and the deadline established by State law for finalizing the ballots or for substituting
candidates on the ballot by political parties had passed. In this context, the issue of
“qualifications” for a candidate receiving the most votes in a congressional election
would arise at the time a Member-elect, with credentials from the State (as a result
of either a special election or an interim appointment in the case of a Senator-elect),
presents himself or herself to the House or to the Senate for being sworn in and seated
to fill the vacancy created by the death of the original majority candidate in the general
Senate and House Decisions on “Qualifications”
As noted, while the States administer federal elections, including such
administrative, housekeeping, and procedural matters as ballot access and placement
on the ballot, the question of the qualifications of a candidate for the United States
Congress is decided, in the first instance exclusively as provided for in the United
States Constitution, and then, as to whether a person has met such constitutional
qualifications, by each House of Congress judging the elections, returns and
qualifications of its own Members.30 Although there had been in the history of our
country some debate over the nature of the authority of Congress to judge general
“qualifications” and/or suitability of a Member-elect for office, the extent of the
authority to exclude a Member-elect by majority vote based on the Member-elect’s
“qualifications,” was expressly and narrowly delineated by the Supreme Court in 1969
in Powell v. McCormack.31 The Supreme Court in that case clearly stated that “in
judging the qualifications of its members Congress is limited to the standing
qualifications prescribed in the Constitution,”32 that is, the Member-elect's age,
citizenship, and inhabitancy in the State from where elected.33 The Court noted that
the House is “without authority to exclude any person, duly elected by his
constituents, who meets all the requirements for membership expressly prescribed in
Modern decisions in the House or Senate on determining “qualifications” are
fairly rare, in part because of the clarification by the Supreme Court in Powell v.
“[E]lection does not, of itself, constitute membership ....” Deschler’s Precedents, supra at
Ch. 9, § 47, p. 481. “... Neither do election and return create membership .... [A] person may
be selected by the people, destitute of certain qualifications, without which he cannot be
admitted to a seat.” Deschler’s Precedents, id., citing Hammond v. Herrick, 1 Hinds’
Precedents § 499.
Constitution, Article I, Section 5, cl. 1
395 U.S. 486 (1969).
Id. at 550.
Article I, Section 2, clause 2 (Representatives); Article I, Section 3, clause 3 (Senators).
Powell v. McCormack, supra at 522.
McCormack delineating Congress’ authority in judging qualifications to judge only
the three express constitutional “qualifications” for office,35 and because modern
communications and media coverage make it more likely that an actual disqualifying
condition (such as a candidate’s age or lack of citizenship) would be revealed before
nominations by a major political party are made. It should be noted that an
appointment by the Governor of California under the Seventeenth Amendment and
the laws of California was challenged in 1964 on the basis of “qualifications” of the
appointee, Pierre Salinger. Under the laws of the State of California one needed to be
a “qualified elector” to be a candidate for United States Senate, which would have
required one to have resided in the State for a particular amount of time. Some
Senators argued that Salinger was not qualified to be chosen to fill the unexpired term
of a Senator from California because, under the laws of the State of California, he had
not resided in California long enough to meet the State's qualifications of being an
“elector,” as required by State law for candidacy.36 The Senate found, in accordance
with the findings of the Privileges and Elections Subcommittee of the Committee on
Rules, however, that such a State law would have force and effect only as to State
and local offices, and could not disqualify one from being chosen as a United States
Senator. State provisions cannot bind the Senate in determining the constitutional
qualifications for office of those presenting credentials for seating, nor can State law
add a “durational” residency requirement to the inhabitancy qualification for Senator
set out in the United States Constitution — that is, to be an “inhabitant” of the State
In the Senate, there has since the adoption of the Seventeenth Amendment been
one other case (in addition to the 2000 Missouri election) in which an ineligible
candidate was on the ballot, and then received the most votes in the election. In that
instance, the Senate candidate receiving the most votes was not yet eligible to serve
in the Senate at the time he was on the ballot for the general election, nor at the time
of the beginning of the new congressional session, because he was only 29 years of
age. The Senate found that since the issue of “qualifications” arises when the
candidate or Member-elect presents his credentials to the Senate for seating, the
Senate could and did allow the candidate/Member-elect to delay presenting his
credentials until the time he was 30 years old, and thus qualified.38 The precedents
in the House similarly indicate that the issue of qualifications would arise at the time
a Member-elect presents his or her credentials for seating, generally at the
commencement of the session, and that the Member-elect would have to meet the
“age” and “citizenship” requirements at that time (but must meet the “inhabitancy”
requirement at the time of the election, that is, “when elected”). The House has in the
The precedents of both the House and Senate pre-dating 1969, where a Member-elect’s
“character” or pre-election “conduct” was examined in judging “qualifications” to office, are
thus of limited relevance to modern congressional practice and constitutional interpretation.
Deschler’s Precedents, supra at Ch. 7, § 9, at 98.
See discussion in election case of Pierre E.G. Salinger, Case 134, United States Senate
Election, Expulsion, and Censure Cases, 1793-1990, Senate Doc. 103-33, at 413 (1995); S.
Rpt. 1381, 88th Cong., 2d Sess. (1964).
S. Rpt. 1381, supra at 4-6.
Hatfield v. Holt, Case No. 119, Election, Expulsion and Censure Cases, supra at 360.
past also allowed a Member-elect to defer taking the oath of office until the beginning
of the second session of the Congress (even though Congress was called into session
earlier by a Presidential proclamation), at which time the Member-elect had met the
seven-year citizenship requirement, notwithstanding the fact that he was “ineligible,”
that is, he was not a citizen for seven years at the time he was on the ballot and
elected in the November congressional election, nor at the beginning of the first
session of the new Congress.39 The House earlier, in 1859, had apparently also
allowed a Member-elect, Mr. John Y. Brown of Kentucky, to defer taking the oath
of office beyond the opening of the Congress, until the beginning of the next session
in December of 1860, at which time Mr. Brown met the constitutional age
Judging Elections In Congress and the “American Rule”
As expressly provided in the Constitution, the House or the Senate as an
institution, in addition to judging “qualifications” of its Members, is empowered to
examine the “elections” and “returns” of its own Members beyond a limited
examination of a Member-elect’s three constitutional “qualifications.” That is, as
stated by the Supreme Court, each House may inquire and judge as to whether a
member-elect was “duly elected by his constituents.”41 The Supreme Court in
Roudebush v. Hartke, affirmed the Senate’s authority to be the final judge of the
elections and returns of its own Members, and expressly recognized the constitutional
authority for “an independent evaluation by the Senate” of an election and the election
returns for the United States Senate: “The Senate is free to accept or reject the
apparent winner in either count [original or recount], and, if it chooses, to conduct its
Given the express textual commitment within the Constitution to each House of
Congress to be the judge of its own Members’ elections, the congressional precedent
and practice in this area, although not technically binding on a future Congress, is of
primary importance.43 Furthermore, given this express textual commitment within the
Constitution, it is not surprising that there is no apparent judicial authority on the
question of whether Congress should seat the next-highest vote-getter when the
majority candidate is ineligible, dead, or otherwise disqualified, or declare the election
a “non-event” and require an immediate “do-over,” since it is not at all clear that the
federal courts, absent any apparent violation of another express constitutional
In re Ellenbogen (1934), Deschler’s Precedents, supra at Ch. 9, § 47, pp. 479 - 482.
1 Hinds’ Precedents of the House of Representatives § 418, pp. 389-390.
Powell v. McCormack, supra at 522.
405 U.S. 15, 25-26 (1972). See also Barry v. United States ex rel. Cunningham, 279 U.S.
597, 614, (1929), concerning the "jurisdiction of the Senate to determine the rightfulness of
the claim [to a Senate seat] ... and its power to adjudicate such right ....”
Brown, House Practice, “Rules and Precedents of the House,” § 2, at p. 809: “On the theory
that a government of laws is preferable to a government of men, the House has repeatedly
recognized the importance of following its precedents and obeying its well-established
provision, would have entertained challenges to review congressional determinations
on the elections of their own Members.44
The practice and experience in both the House and the Senate on elections of
“ineligible” candidates is clear, and is remarkably consistent given the great potential
for partisan division on this issue when it arises with respect to a particular Memberelect. The overwhelming weight of authority in both the Senate and the House, as
well as the express statements of official Senate and House procedural and
parliamentary guides, clearly indicate that the ineligibility of the majority candidate in
a congressional election, whether because of death, disability or other incapacity
before or after the election, gives no title or right to the office to the runner-up
candidate, but rather merely creates a “vacancy” in the office from that State.45 This
has been the case whether or not the law of the particular State in which the election
was held would have, under express State law or practice, given the election to the
runner-up. In the Indiana election case of Lowery v. White in the Fiftieth Congress,
notwithstanding the fact that Indiana law at that time followed the minority “English
Rule” and would have awarded the election to the runner-up if the majority candidate
was ineligible, the majority of the Committee on Elections found that the clear and
long line of congressional precedent follows the so-called “American Rule,” and that
despite the State law the runner-up is not entitled to a congressional seat upon the
disqualification of the majority candidate.46
As early as 1868 the House had under its consideration a challenge to a
“vacancy” where the contesting candidate claimed a seat by virtue of the fact that the
winning candidate on the ballot in the original election had been constitutionally
disqualified because he was not an “inhabitant” of the State. The House explained
that the constitutional disqualification of the candidate on the ballot because of a lack
“The Senate [has the] sole authority under the Constitution to judge of the elections, returns
and qualifications of its members ...” and “to render a judgment which is beyond the authority
of any other tribunal to review.” Barry v. Cunningham, 279 U.S. 587, 613, 619 (1929); Reed
v. County Commissioners, 277 U.S. 376, 388 (1928); Keogh v. Horner, 8 F. Supp. 933, 935
(S.D. Ill. 1934). See also, generally, Baker v. Carr, 369 U.S. 186, 210 (1962), as to
“nonjusticiability” of a political question under the separation of powers doctrine where there
is “found a textually demonstrable constitutional commitment of the issue to a coordinate
political department ....”
Riddick’s Senate Procedure, Precedents and Practices, supra at 701; Deschler’s
Precedents, supra at Ch. 7, § 9, p. 96. For the opposite and minority conclusion in the House
of Representatives, see Lawson v. Owen, H.R. Rpt. No. 968, 71st Cong., 2d Sess. (1930),
Deschlers’ Precedents, supra at Ch. 9, App., pp. 862-863. The recognition of the so-called
“British Rule” by the majority of the Committee on Elections was not, however, dispositive
nor relevant to the final decision of the Committee, nor expressly approved by the House in
this case, as the majority candidate was found to possess the requisite citizenship
qualifications and was seated.
Rowell’s Digest, supra at 426-427; 1 Hinds’ Precedents, supra at § 424, p. 403: “The
universal weight of authority in the United States in both branches of the Congress thereof
render an extended discussion of this point quite unnecessary.” The House did not need to
rule on or confirm the majority opinion of the Committee, as the House found that the majority
candidate was qualified, seating the Member-elect and dismissing the contest.
of “inhabitancy” in the State was immaterial to the challenger’s claim to the seat, since
the disqualification of the majority candidate on the ballot for lack of inhabitancy
would merely create a “vacancy” in the office, and would not elect the minority or
second place vote-getter:
Contestant further contended that Mr. Mann was not at the time of his election an
inhabitant of the State, and was therefore ineligible. ... [T]he committee held that
it was immaterial whether he was ineligible or not, as under the principles already
settled by the decisions of other cases the ineligibility of the majority candidate
would give no title to the minority candidate. The committee were therefore
unanimous in the opinion that Mr. Jones was not elected, and that the death of Mr.
Mann had caused a vacancy.47
In the Senate, it is plainly noted in the Senate’s procedural treatise that: “In
election cases the ineligibility of a majority candidate, for a seat in the Congress gives
no title to the candidate receiving the next highest number of votes.”48 Senate
precedents, citing similar rulings in the House of Representatives, have stated the
“well-established Senate rule that the ineligibility of the winning candidate gives no
title to the candidate receiving the next highest number of votes.”49 In the Senate
election case of Henry D. Hatfield v. Rush D. Holt, where the candidate on the ballot
who had been elected by the people was only twenty-nine years old, “the Senate ...
reaffirmed that even if a winning candidate was ruled ineligible, the runner-up in the
election would not be declared elected.”50 The Committee on Privileges and Elections
in the 74th Congress explained as follows:
Also, that the said Henry D. Hatfield, by virtue of his having received the
next highest number of eligible votes for United States Senator in the general
election held in and for the State of West Virginia in November 1934, is not the
duly elected Senator from the State of West Virginia. The rule is well settled that
in election cases the ineligibility of a majority candidate for a seat in the Congress
gives no title to the minority candidate or to the candidate receiving the next
highest numbers of votes. See Jones v. Mann (40th Cong.); Rowell’s Digest 220,
2 Bartlett 475; Cannon v. Campbell (47th Cong.), Rowell’s Digest 391.51
It should be noted that one early authority on parliaments and legislative
assemblies, Luther Stearns Cushing, had suggested that, although it would be a
“harsh” result, votes cast for a candidate whom the electors knew to be disqualified
Jones v. Mann, Rowell’s Digest, supra at 226, 1 Hinds’ Precedents, supra at § 326.
Riddick’s Senate Procedure, Precedents and Practices, supra at 701.
Senate Election, Expulsion and Censure Cases, supra at 360, Case No. 119.
Id. at 361.
S. Rpt. No. 904, 74th Cong., 1st Sess. 3 (1935). See also Bayley v. Barbour, 1 Hinds’
Precedents, supra at § 435, p. 422: “The Elections Committee held that a contestant could
have no claim to a seat declared vacant because of the constitutional disqualifications of the
should be considered “thrown away” and “the opposing candidate elected.”52 In the
early election case of Smith v. Brown (1861) in the House, however, Cushing’s
opinion, based on English parliamentary practice and called the “English Rule,” was
criticized and expressly rejected in favor of the “American Rule” of representative
democracy. As explained in Rowell’s Digest, the committee in that case found:
But the English rule had never been applied in this country and was hostile to the
genius of our institutions. Mr. Cushing, in stating the English parliamentary rule,
states that in his opinion the same rule applies in this country, but he gives no case
to sustain his statement, which is the best of evidence that there are none. There
had been numerous cases in the House and Senate where members were deprived
of their seats because of ineligibility, but in no case had it ever been claimed that
any title was thereby given to the minority candidate.53
The so-called “American Rule” is based on principles of representative
democracy, that in such a system the overriding issue in an election contest in the
House or Senate is to attempt to effectuate the will of the majority (or plurality) of
the voters of that State or district, usually in determining who was “actually elected”
or “duly elected” by the people to represent them, that is, who has received the most
votes.54 Under these principles, one who has, in fact, lost an election, that is, has
received fewer votes than someone else on the ballot, is therefore not seated by the
legislature in contravention of the choice of the people of the State or district upon
a finding by the legislature of an ineligibility and disqualification of the actual winner
of the election. When, under the American Rule, a majority or plurality of voters vote
for a candidate widely known to be ineligible (such as in the case of a candidate who
dies shortly before the election but whose name remains on the ballot), it is assumed
that the will of the majority or plurality of voters was to choose a “vacancy.” In the
case of Senate races, if the Governor has already indicated the person whom he will
appoint to fill the vacancy should the deceased candidate receive the most votes, then
the will of the electorate, in giving the most votes to the deceased candidate, would
arguably have been expressed in favor of that proposed appointee over the other
candidates on the ballot. In one case in the Senate concerning an “anticipatory
appointment,” where there arose an issue as to which Governor (the outgoing or
incoming) had the authority to appoint an interim Senator to the vacancy created by
the in-coming Governor who was giving up his Senate seat to be Governor, the
Senate precedent indicates that the decision was made, in part, on a recognition that
“the voters had known when they elected Matthew Neely governor that he intended
to name his Senate successor, since he made his plan clear during the campaign.”55
Cushing, Elements of the Law and Practice of Legislative Assemblies, at 67 (Boston 1856).
Smith v. Brown, Rowell’s Digest, supra 220-221.
Justice Joseph Story, Commentaries on the Constitution of the United States, Volume I,
§ 833, p. 585 (1873); Tucker and Tucker, The Constitution of the United States, A Critical
Discussion of Its Genesis, Development and Interpretation, Vol. I, at pp. 426-427 (1899):
“The power of election is vested ... in the constituency,”and it is left to each House finally to
determine who the constituency has “duly elected.” See also Powell v. McCormack, supra
at 522; Roudebush v. Hartke, 405 U.S. 15 (1972).
Martin v. Rosier, Senate Election, Expulsion and Censure Cases, supra at 373, Case 124.
It was argued during the 2000 Senate race in Missouri that the Seventeenth
Amendment, adopted principally to provide for popular election of United States
Senators, should limit a Governor’s authority (and the authority of the State
legislatures in empowering the Governor) to require a Governor to issue only “writs
of election” for a special election when there is a vacancy which has been created by
the election of a candidate known to be disqualified or ineligible at the time of the
election, rather than making a “temporary appointment” to fill such vacancy until a
later scheduled election.56 Although there are some interesting policy arguments
concerning such proposed limitations on State Governors’ authority to make
“temporary appointments” in these circumstances, particularly where the Governor
is of the same major political party as the surviving candidate,57 there is nothing on the
face of the language of the Seventeenth Amendment, its enactment history, nor any
judicial interpretations or congressional precedents which support such a restrictive
construction of State authority under the Amendment.
The language of the vacancy clause of the Seventeenth Amendment clearly
provides no distinctions as to when or how the “vacancy” in the office has been
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.
The text and the actual language of the Amendment clearly show, therefore, that
there is no express restriction on a State legislature’s or Governor’s authority which
is dependant or based upon any distinctions in the nature or the timing of how or
when the Senate vacancy occurs. Rather, the language of the Amendment appears
to provide on its face two alternate ways for a State to fill any vacancy in the State’s
representation in the Senate: either the executive of the State shall issue writs of
election for a special election to fill the vacancy, or, if expressly authorized by the
legislature of the State, the Governor may make a “temporary appointment” to fill the
vacancy until the people select a replacement for the remainder of the term in a future
election as the State “legislature may direct.” As noted in dicta by the Supreme
Court, “the Seventeenth Amendment permits a state, if it chooses, to forgo a special
election in favor of a temporary appointment to the United States Senate ....”58 In
practice, most of the States provide for a temporary appointment by the Governor
until the next regularly scheduled biennial congressional election, but a State might
Viet D.Dinh, “Dead Men Can’t Win,” The Wall Street Journal, November 9, 2000, at A26.
Some States require the Governor to select someone from the same political party as the
deceased Member to fill a vacancy, but such additional requirement might prove difficult to
enforce in court, as it may be seen as a qualification for the Senate additional to those
established in the Constitution.
Rodriquez v. Popular Democratic Party, 457 U.S. 1, 11 (1982).
also provide for a more immediate “special election” and authorize an appointment
by the Governor until the time of such election.59
Generally speaking, in provisions such as the Seventeenth Amendment, the “plain
meaning” of the text and the words of the provision should be employed in discerning
its import and intent, unless there is some clear and express countervailing enactment
Furthermore, under long-established principles of constitutional
interpretation, meaning must be given to all the words in a provision, and thus phrases
and words in the text of the Constitution may not be ignored.61 Thus, while the
principal purpose of the Seventeenth Amendment was certainly to provide for the
popular election of Senators, the express discretion and authority delegated to the
State legislatures to allow the Governor of the State to make temporary appointments
to fill Senate vacancies can not be disregarded.62
In the enactment history of the Seventeenth Amendment there is no express
indication that a State is required to hold a more immediate “special election” to fill
a vacancy created by the death or other ineligibility of the majority candidate in a
general election, as opposed to using the alternative method of allowing a temporary
appointment by the Governor until a later election is held, as directed by the State
legislature. In fact, in the earliest formulations of the vacancy language used in what
became the Seventeenth Amendment, the drafter was cognizant of the expense of
State-wide elections, and expressly intended to allow the State to be spared the
expense of having to hold another State-wide “special election” soon after or before
a regular State-wide election.63
For a general discussion of experiences of States in filling Senate vacancies, see Alan L.
Clem, “Popular Representation and Senate Vacancies,” 10 Midwest Journal of Political
Science 52 - 77 (Feb. 1966); for recent compilation of State provisions, see S. Doc. 106-14,
106th Cong., 2d Sess., Senate Election Law Guidebook 2000 (1999).
United States v. Sprague, 282 U.S.716, 731-732 (1931)(in providing two alternative
methods of ratification, there is nothing in the text of the Constitution which requires the
legislature [Congress] to select one method over the other); McPherson v. Blacker, 146 U.S.
1, 27 (1892); see generally, Justice Joseph Story, Commentaries on the Constitution , § 451.
Marbury v. Madison, 5 U.S. 137, 174 (1803); Holmes v. Jennison, 39 U.S. 540, 571
One existing problem expressly recognized in the enactment history of the Seventeenth
Amendment was that of extended vacancies in State delegations to the Senate caused by
inaction and political stalemate and intrigue in the State legislatures. S. Rpt. No. 961, 61st
Cong., 3rd Sess. 13-14 (1911); David E. Kyvig, Explicit and Authentic Acts, Amending the
U.S. Constitution, 1776-1995, at 209, noting that “Delaware was represented by only one
senator in three Congresses and none at all from 1901 until 1908.” The provision of a
mechanism for the temporary appointment by the Governor of a State in cases of Senate
vacancies until an election is held, providing a quick and efficient method to fill a Senate
vacancy, may have been intended in part as an effort to address this problem.
Representative Tucker of Virginia originally drafted and offered in 1892 the vacancy
provision eventually adopted in 1912. As reported in the House, one reason discretion was
given to the State legislatures to allow a “temporary appointment” until a later election, such
as a regularly scheduled state-wide election, was that mandatory special elections might be
There is also no express indication in the enactment history that the Amendment,
contrary to its express language, was intended to limit or restrict the authority or
power of a State legislature over the details of the procedures of elections in their
respective States to fill vacancies. The enactment history of the Seventeenth
Amendment in the United States Congress shows a serious debate and division
concerning “States’ rights,” with one of the major contentions in the debate being
over a provision, adopted in one House, which went so far as to remove entirely
Congress’ residual authority over the “Times, Places and Manners” of federal
elections in the States under Article I, Section 4, clause 1 of the Constitution.64 The
author of the substitute amendment eventually adopted by Congress, Senator Bristow,
noted explicitly that the direct election provisions were not intended to “add new
powers of control to the Federal Government” at the expense of the authority of the
State legislatures over such elections.65 The constitutional provision adopted
expressly provides as to vacancies, in fact, that after a temporary appointment, the
people of the State will fill the vacancy by election “as the legislature may direct.”
This is a direct grant in the United States Constitution of authority and discretion to
the State legislatures,66 limited only by the requirement that the Governor’s
appointment be “temporary,” and there is no indication of a silent or implicit agenda
to limit that authority or discretion when vacancies arise from the death of a
candidate, or otherwise, at the beginning of the term.
Federal courts looking at the issue of whether the Seventeenth Amendment
requires a State to hold a “special election” to fill a Senate vacancy have concluded
that the Constitution delegated to the State legislatures significant discretion and
authority as to the mechanics and procedures of how and when vacancies in the
Senate from their respective States are to be filled. In Valenti v. Rockefeller, a federal
court, in a case expressly affirmed by the United States Supreme Court, found that
there is nothing in the Seventeenth Amendment, nor its history, that requires the State
to hold a special election to fill a vacancy, rather than to have a temporary
gubernatorial appointment, even if such appointment extends, because of the State’s
statutory nominating procedures, more than two years and thus beyond the next
immediate State-wide election.67 The court noted there that the pre-Seventeenth
Amendment history, as well as the Amendment’s enactment history, “provides no
support for plaintiff’s contention that special elections are required to fill vacancies
a “hardship” on the State which recently had or soon will have a state election, since “to add
another State election would be imposing an unnecessary expense on the people.” H.R. Rep.
No. 368, 52d Cong., 1st Sess. 5 (1892).
This provision was reported out of committee in the Senate, and had passed the House. S.
Doc. No. 666, 62d Cong., 2d Sess. 6-9, “Resolution for the Direct Election of Senators,” by
Senator Joseph L. Bristow (1912); Kyvig, Explicit and Authentic Acts, supra at 210-213.
S. Doc. No. 666, 62d Cong., supra at 9. Trinsey v. Commonwealth of Pennsylvania, 941
F.2d 224, 234 (3rd Cir. 1982), cert. denied, 502 U.S. 1014 (1991).
See McPherson v. Blacker, 146 U.S. 1 (1892), as to express constitutional delegation to the
State legislatures of role in electoral scheme for choosing presidential electors.
Valenti v. Rockefeller, 292 F. Supp. 851 (D.C.N.Y. 1968), aff’d, 393 U.S. 404, 405, 406
(1969), rehearing denied, 393 U.S. 1124 (1969).
under the Seventeenth Amendment.”68 Noting the discretion expressly given in the
text of the Constitution to the State legislatures over this issue, the court found:
The Seventeenth Amendment’s vacancy provision explicitly confers
upon the state legislatures discretion concerning the timing of vacancy
elections. If the legislature authorizes the governor to make a
temporary appointment, the appointee may hold office “until the people
fill the vacanc[y] by election as the legislature may direct.”... [W]e
believe that we must give effect to the natural reading of the
Seventeenth Amendment as adopted since there is no indication that the
Congress which proposed the Amendment, or the state legislatures
which ratified it, intended a different meaning. This natural reading
grants to the states some reasonable discretion concerning both the
timing of vacancy elections and the procedures to be used in selecting
candidates for such elections. This interpretation gains support from
Art. I, § 4 of the Constitution which gives to the state legislatures the
initial power to prescribe the “Times, Places and Manner of holding
Elections for Senators and Representatives ....” If the drafters of the
Seventeenth Amendment had intended to bring about a radical
departure from this normal rule of state discretion in the instance of the
timing and manner of holding vacancy elections, such as by requiring
special elections, it is likely that they would have employed clear
language to that effect. ...69
The court found that the Seventeenth Amendment did place “some limit on the
discretion of the states” by requiring that the Governor’s appointment be “temporary”
until an election is held.70 The majority of the court did not, however, attempt to set
an outer limit to that time. In the case of the New York statutory provisions in effect
and reviewed in Valenti v. Rockefeller, the “temporary appointment” by Governor
Rockefeller after the death of Senator Robert Kennedy worked out to 29 months.71
In a similar manner, in Trinsey v. Commonwealth of Pennsylvania,72 the United
States Court of Appeals found that the discretion granted to the State legislatures in
the Seventeenth Amendment to establish the details of the procedures and timing of
vacancy elections for the Senate was so broad and significant that, even though the
Seventeenth Amendment itself required popular general elections for the Senate, the
Commonwealth of Pennsylvania was within its authority under the vacancy clause to
provide by statute that nominations for a special election to fill a Senate vacancy may
be made without a popular primary election. The court noted that the legislative
history of the Seventeenth Amendment indicated that the Congress “was resistant to
any change that would decrease the power and authority of the states and enlarge that
of the federal government,” and that the “explicit provision in the vacancy paragraph
Id. at 865.
Id. at 856.
292 F. Supp. at 868.
941 F.2d 224 (3rd Cir. 1991), cert. denied, 502 U.S. 1014 (1991).
of the Seventeenth Amendment vesting discretion in the state legislatures ... itself
could be deemed dispositive of the issue.”73
Id. at 234.
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