Hawaii’s law which requires political parties to select and submit three names to the governor in the event of a vacancy in one of the state’s U.S. Senate seats is not “constitutionally proper,” according to a law professor at the University of California at Davis.
Vikram David Amar, in a column at Justicia.com, argues the “short list” requirement impermissibly limits the governor’s constitutional authority and is therefore subject to a constitutional challenge based on the Seventeenth Amendment (“The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye“).
Here’s the relevant part of the Seventeenth Amendment regarding vacancies.
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.
Amar first examines the amendment carefully.
The Seventeenth Amendment’s language differentiates between a state “legislature” and a state “executive” authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to “empower the [state] executive to make [the] appointment.”
In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.
This textual argument—that the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons—is reinforced by the last five words of Section 2 of the Seventeenth Amendment: “as the legislature may direct.” This clause refers to, and confirms, the legislature’s discretion as to the timing and procedures of any special popular election to be held to fill a vacancy. By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.
He then turns to the history of the Seventeenth Amendment, arguing that it’s primary purpose was to allow for quick appointments by the governor in order to avoid long Senate vacancies. In an extended analysis, he argues that letting party insiders limit the governor’s choice sets creates a potential political roadblock in the event the governor rejects the three nominees presented.
Some modern observers see virtues—in a world in which political parties are enduring and sometimes beneficial realities—to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances, and because party leaders can ensure that whoever fills a vacancy is a bona fide party member, rather than a nominal one. Yet party leaders are also often much more extreme and partisan than the median party member in a state, and they are certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public.
In any case, this is definitely a column worth reading.
Local attorneys Mark Murakami and Robert Thomas recently examined the history of the Hawaii law as well as the constitutional issues (“Senate Vacancies, And Why Governors Must Pick Temporary Appointees Chosen By Political Parties“), including lots of useful links.