Senator Mark Kelly (D-AZ), the former astronaut and rising political star, was sworn in December 2, marking the end of an astonishingly long period (two years plus three months) during which the people of Arizona were deprived of their constitutional right to elect one of their two U.S. senators. It is an outrage that it took this long. We should, at long last, fully honor the 17th Amendment, which guarantees the people’s right to elect senators, including prompt special elections to fill vacancies.
Senator John McCain (R-AZ) died in August 2018, after Arizona’s filing deadline for that year’s regular election. Arizona is one of 37 states that now thumb their noses at the 17th Amendment by prohibiting special senatorial elections except at the next November election (and usually not until the next regular biennial election), thus allowing appointed senators to serve a full year or two, or even longer in some cases. Until 2018, 14 states allowed reasonably prompt special elections, but Alabama Republicans abolished that state’s provision after the December 2017 special-election victory of Sen. Doug Jones (D-AL), claiming it cost too much money. Apparently they found democracy too expensive!
Arizona’s governor appointed McCain’s first replacement, former Sen. Jon Kyl (R), who served from September to December 2018. The governor then, astonishingly, appointed Sen. Martha McSally (R), who took office in January 2019, even though she had just been rejected by Arizona voters, who elected her opponent, Sen. Kyrsten Sinema (D). Voters rejected McSally yet again last month when Kelly also defeated her.
Some may argue Arizona voters elected a Republican (McCain) for a six-year term in 2016, so why not let one or more appointed Republicans serve out that term, at least until the next biennial election?
But that argument ignores the obvious fact that politicians are not fungible, even if they belong to the same party. The individual matters. McSally, a lockstep supporter of President Donald Trump, often veered much more to the right than McCain (as did Kyl), during various times when each served either as senator or in the U.S. House of Representatives. McSally in 2018 accused her Democratic opponent (now Sen. Sinema) of “treason.”
McCain, by stark contrast, often tangled with Trump and defied the party line. He famously cast the decisive vote in 2017 to save the Affordable Care Act (“Obamacare”) from efforts to repeal it (without offering any plausible alternative) pushed by Trump and almost all other Senate Republicans (and by McSally, then in the House). Senator Kelly, a fellow Naval aviator who praised McCain, emphasized health care in his campaign, and paid homage at McCain’s gravesite the day before he was sworn in, is a far more suitable and worthy successor.
In any event, McSally’s long and totally unearned tenure in the Senate defied not just the twice-expressed wishes of her fellow Arizonans, but the plain text of the Constitution. The 17th Amendment, ratified 107 years ago, declares that senators shall be “elected by the people.” And it mandates, “[w]hen vacancies happen,” that the governor “shall issue writs of election to fill such vacancies” (emphasis added). That must refer to prompt special (not just biennial or November) elections, because there would generally not seem to be any need to require special issuance of “writs” for elections on regularly scheduled dates.
To be sure, if a vacancy occurs not long before a regularly scheduled election, convenience would make it reasonable to hold the election at the regular time. There’s actually no good reason why the election to replace McCain could not have been held way back in November 2018. If so, Kelly, with the support of Arizona voters, might well have served more than two years in the Senate already.
The 17th Amendment gives state legislatures the option to “empower” a governor “to make temporary appointments until the people fill the vacancies by election …” (emphases added). Five states (two of them deeply “red”) — North Dakota, Oklahoma, Oregon, Rhode Island, and Wisconsin — are so protective of the people’s right to choose senators that they refuse to allow their governors to make even the briefest senatorial appointments. That may go too far the other way, but is actually more in tune with the spirit of the 17th Amendment than the current rules in Arizona and 36 other states.
Eight states: Alaska, Connecticut, Louisiana, Massachusetts, Mississippi, Texas, Vermont, and Washington — interestingly, four “red” and four “blue” states — take the best approach. They allow appointed replacements, so the state’s voting strength in the Senate won’t be reduced even briefly. But they also require special elections.
Take note of this important though little-known historical fact: The unusually long six-year senatorial term was one of the most controversial features of the Constitution when it was originally debated. See historian Pauline Maier’s classic study, Ratification: The People Debate the Constitution. The old system in which state legislatures elected senators was famously prone to corruption and backroom political deals, and became hugely unpopular. That sparked the drive for constitutional reform that led, after decades of hard struggle, to the 17th Amendment.
There’s a further odd twist in Kelly’s case. The Arizona election results were formally certified on Monday, November 30. Yet the official Senate website lists McSally as a senator during important votes held Tuesday, December 1, and even up to 1:00 pm Wednesday, December 2 — as Senate Republicans continued their drive to ram through confirmations of “lame-duck” Trump judicial and executive nominees. The website indicates, however, that McSally did not actually vote on those days, perhaps because she chose to display some political decency. Wikipedia describes McSally as serving in the Senate right up to when Kelly was sworn in on the afternoon of December 2.
But that is all contrary to the specific and unambiguous text of the 17th Amendment, which says a governor’s “temporary” appointment lasts only “until the people fill the vacanc[y] by election.” Regardless of any delay before an elected successor may be sworn in, the people obviously “fill the vacancy by election” no later than when the final election result is legally certified. The appointed senator’s term ends automatically and immediately at that time. It is jaw-droppingly outrageous to imagine such an appointee continuing to cast votes, much less an appointed senator already certified as defeated in that very election, in possibly decisive support of the lame-duck nominations of a president also defeated in that same election!
A Senate appointment lasting one or two years (or more) is not “temporary” by any reasonable stretch. It is an insulting denial of the rights of the people and a palpable violation of the Constitution. McSally’s unearned tenure amounted to almost one third of a full senatorial term, and was roughly equal to the full constitutional term of a member of the House.
The Constitution’s provision for “temporary” Senate appointments is a limited exception to the Senate’s design and character — under the 17th Amendment — as an elected body representing the people of the several states. Allowing such appointments to last any longer than absolutely necessary — even worse, to become politically influential during a lame-duck period — is an intolerable perversion of that design, undermining the very character of the Senate under the Constitution.
Since so many states have obdurately refused to reform their laws (even retrogressing, as in Alabama), Congress must take action under its indisputable power to regulate the “Times” and “Manner of holding Elections for Senators” (Art. I, sec. 4, cl. 1). And the Senate’s so-called filibuster rule, whatever role it may generally continue to play, should certainly not be allowed to block such legislation in particular. Congress must mandate special elections following any Senate vacancies on the fastest possible schedule that is reasonably feasible. A lawsuit raising this issue would also be a good idea. One would hope the Justices currently in the majority on the Supreme Court, who profess to honor the original textual meaning of the Constitution, would be receptive.
Bryan H. Wildenthal is Professor of Law Emeritus, Thomas Jefferson School of Law (San Diego), and will serve as Visiting Professor, University of San Diego School of Law (Spring 2021).
Suggested Citation: Bryan H. Wildenthal, The People’s Right to Elect Senators, JURIST – Professional Commentary, December 10, 2020, https://www.jurist.org/commentary/2020/12/bryan-wildenthal-the-peoples-right-to-elect/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
