Thomas Geoghegan: Governors shouldn't be filling all those empty senate seats

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[Thomas Geoghegan, a labor lawyer and the author of “See You in Court: How the Right Made America a Lawsuit Nation,” is a candidate for the House in Illinois’s Fifth Congressional District.]

IN 2009 four new senators will slip into office — all in violation of the Constitution, which requires a special election to fill a Senate vacancy. Colorado, Delaware, hapless Illinois and star-struck New York will have senators “elected” by a single voter, the governors who appoint them.

It may have been a while since many of us read the 17th Amendment, which was ratified in 1913. Its first paragraph replaced the indirect election of senators by state legislatures with “direct” popular election by the voters. The second paragraph, which you may have skipped in school, deals with vacancies. It states that when seats open up unexpectedly, governors “shall issue writs of elections to fill such vacancies.” The plain enough meaning is that the governor will issue an order for a special election. But for decades now governors have opted not to issue writs directing new or special elections. Why are they ignoring the Constitution? To increase their own power, of course.

The pretext being used is a legal “proviso” in the amendment that comes later in the second paragraph. It states: “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.”

A proviso, one learns in law school, is to be interpreted strictly, and certainly should not cancel out the clause it modifies. In this case, that clause states in plain English that the governor must issue a writ of election. Rather than excusing the immediate issuance of a writ, the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines. For example, if the legislature decided that it would take 120 days to hold a special election, it would seem perfectly proper for the governor to send a temporary appointee to vote on a pending budget bill or major treaty.

Yet the current practice in virtually every state flips the proviso to override the main clause. Governors don’t issue a writ or start the machinery for a special election as the amendment requires, but instead fill the post for up to two years, until the next general election. This frustrates the whole democratic thrust of the amendment....
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Robert Lee Gaston - 1/12/2009

"...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."

I suppose they have trough their lack of action empowered the executive.

That is because by in large, state legislatures are not known for their plitical will or their courage.

In this case they would only want an election if there were a Republican governer who appointed another Republican.

All elections have risks.