The 17th Amendment to the U.S. Constitution is known best for establishing direct election of senators, but it also allows state legislatures to empower the governor to appoint a replacement to complete the term of any vacancy due to death, resignation, or expulsion. While many states have used this provision to fill their vacancies, the Amendment does not clarify whether this replacement is permitted to run for the seat in the next election. It is presumed that any legislation specifically forbidding this may be unconstitutional.

Senator Edward Kennedy’s death on August 25th, 2009 created a vacancy in the Senate. Pursuant to MA GL ch. 54, § 140, Governor Deval Patrick set a special election date for January 19th, 2010. On September 19th, 2009, in accordance with the 17th Amendment, the Massachusetts House passed a bill allowing the governor to appoint an interim senator to represent the state until the special election takes place in 2010. On September 22nd, the MA Senate also approved the bill, and the General Court with both houses gave final approval the following day. On September 24th, the governor signed the bill into law. Patrick then appointed Paul G. Kirk, Jr. as interim US senator. His appointment will expire after the special election on January 19th, 2010. Governor Patrick chose Kirk under the condition that he not run in the special election, in response to both the MA House and Senate passing resolutions requesting that the selectee not run in the special election.

Contrast this with New York. On January 21st, 2009, Hillary Clinton’s resignation as senator from New York to become Secretary of State created a vacancy in the Senate. Pursuant to Section 42 of the Public Officers Law and the 17th Amendment of the U.S. Constitution, Governor David Patterson was charged with appointing an interim senator until a special election could take place in 2010. On January 23rd, Governor Patterson announced Kirsten Gillibrand as his choice. Gillibrand, since then, has filed to run in the Special Election in 2010 for the remaining two years of Clinton’s term.

Why is it that a New York governor may appoint a senator who may have an opportunity to run in the special election, but this Massachusetts appointed senator does not have that same option? Before the new appointee law was passed in September, Massachusetts could not fill a vacated seat until a new senator was elected via special election. The given reasoning for this new bill was the urgency of full representation during key legislation voting, specifically the health care bill, until a replacement could be elected. Fearing unconstitutionality, the Massachusetts House voted down a provision which would have barred any appointee from attempting to run and passed the above mentioned resolution in its stead.

It appears a strong resolution encouraging this appointee not to run was necessary in order to allow any appointment at all amidst partisan pressure in the Massachusetts legislature. The resolution seems to have been a successful measure of compromise to avoid lengthy delay, in the interest of immediate and adequate representation of the states constituents for what is perhaps the most important piece of legislation this decade.

Alex Grout is a student at William and Mary Law School

http://electls.blogs.wm.edu/2009/11/18/ma-legislature-flirts-with-unconstitutionality-in-compromise-regarding-appointed-senator/

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