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Saturday, April 18, 2020

The complexities of the Senate

David Super's piece about a canceled election, which I mentioned last night, revealed a math error in my original post on the topic. Option # 3 (Acting President Grassley) would be the result of a 49-48 Republican Senate rather than 50-47 (I think I coded Kansas as a state with a Republican governor). This is based on a 35-30 Democratic rump, 13 states with D governors who can appoint who they want, 18 states with R governors who can appoint who they want, and one state with a D governor forced to appoint a Republican. The result is the same--Acting President Grassley (or a more qualified person chosen by the Republican majority)

A series of email exchanges with David adds some new wrinkles and complications.

David proposes that Cooper could finesse the appointment situation by finding the most liberal Republican available, someone who would not allow Trump/Pence to return to the White House, even if he would caucus with the GOP. That might get us out of President Trump, although it leaves Acting President Grassley.

In any event, that option is blocked by North Carolina's Senate-vacancy law, amended by the GOP legislature after Roy Cooper became governor, which requires the governor to appoint from a "list of three persons recommended by the State executive committee of the political party with which the vacating member was affiliated when elected." So it is not just that Cooper cannot appoint who he wants; he cannot appoint the Republican he wants. I imagine the North Carolina Republican party will find someone pretty Trumpist.

The more interesting wrinkle is this (also suggested by someone on a Con Law listserv discussion). North Carolina law allows the governor to appoint when there is "a vacancy in the office of United States Senator from this State, whether caused by death, resignation, or otherwise than by expiration of term." The vacancy in the Senate occurring at 12:01 p.m. on January 3 is caused by the expiration of the prior term combined with the failure of a new Senator to qualify because of the failure to hold elections. There are two ways to read this.

One is that the governor cannot make an appointment in this situation, because the expiration of the current term created the vacancy. If so, Cooper cannot make an appointment, leaving us with a 48-48 Senate.

The second reading is that an appointment is allowed because the failure of a new Senator to qualify caused the vacancy, which is an "otherwise" cause distinct from expiration of the term. But then it is not clear how that party limitation can or should apply. The party limitation applies when "the Senator [whose departure created the vacancy] was elected as the nominee of a political party." But there is no such Senator in this situation. Current GOP Senator Thom Tillis is not the Senator chosen as of 12:01 p.m., the moment the vacancy occurs, because of expiration of his term. It is of no moment that Tillis most recently was elected to the seat; the significance of that election ended with his term. (Just as it is of no moment who most recently held a House seat as of the expiration of his term). On this reading, we have a vacancy created "otherwise" that allows a temporary appointment, but no  former "Senator . . . elected as the nominee of a political party" to trigger the party limitation to limit the appointment. Cooper thus can appoint a Democrat, producing a 49-48 Democratic Senate. There follows a nice question of who resolves any dispute about the lawfulness of this appointment: the Senate, through its power to judge qualifications, or the North Carolina Supreme Court as the last word on state law.

So now we have a new question about the remaining 31 states, their statutes, and how they handle this combination of expiration of term and failure to qualify. For example, Minnesota's law says the governor can make a temporary appointment to fill "any vacancy," with vacancy defined as any time the office is not occupied. I looked at Minnesoat because it faced a similar situation in 2009 when the Al Franken-Norm Coleman recount and election contest continued into July; Republican Governor Tim Pawlenty floated the idea of a temporary appointment until the contest resolved, reading the statute to mean an undecided election created a vacancy supporting an appointment. A vacancy because no election had been held should be the same. Perhaps only some subset of the 32 open states can make appointments, meaning Senate control depends on which combination of states are able to appoint.

Posted by Howard Wasserman on April 18, 2020 at 04:25 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

I have not seen any literature suggesting a constitutional defect. The legislature already has the power to restrict the appointment--for example, some allow an appointment to serve the remainder of the term while others allow an appointment to serve until a special election while others allow an appointment to serve until the next scheduled general election. I don't see why limiting the universe of choices violates that general delegation.

Posted by: Howard Wasserman | Apr 19, 2020 11:44:56 AM

"list of three persons recommended by the State executive committee of the political party with which the vacating member was affiliated when elected"

What do you think of the constitutionality of that provision? The 17th amendment says that legislature may empower the executive to make appointments, it is not obvious to me that they can also restrict the choices in this way.

Posted by: Jr | Apr 19, 2020 6:03:19 AM

I really thought (hoped?) this would be about Emperor Palpatine...

Posted by: jj | Apr 18, 2020 10:26:57 PM

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