The Senate Vacancies Amendment

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.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

—Todd J. Zywicki

Introduction

Under Article I, Section 3, Clause 1 of the Constitution as originally ratified, Senators were “chosen by the Legislature” of each state (see Essay No. 15); under Clause 2, the state “Executive” could “make temporary Appointments” to fill a Senate vacancy when the state legislature was in “Recess” (see Essay No. 16). Clause 1 of the Seventeenth Amendment, ratified in 1913, removed the legislature’s power to elect Senators and replaced it with the popular election of Senators (see Essay No. 203); Clause 2 altered the process by which Senate vacancies would be filled and potentially raises sparsely litigated separation-of-powers, federalism, and partisanship issues. Under Clause 3, the new method for electing Senators did not apply to those who were already in office.

Senate Vacancies Under the Original Constitution

Under the original Constitution, the state legislatures elected Senators. If a Senate vacancy arose while the state legislature was in session, the legislature could meet immediately to elect a new Senator. However, if the state legislature was in recess, there would be a period during which the state would lack equal representation in the Senate. The Framers addressed this circumstance through the Senate Vacancies Clause: “[I]f Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.”¹ House of Representatives vacancies, by contrast, are filled by election: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”²

The Constitutional Convention

The proposal to fill vacancies in this manner generated minimal debate at the Constitutional Convention. James Wilson of Pennsylvania argued that empowering the executive to fill Senate vacancies would “remove[] the appointment too far from the people.”³ At that time, the executive in many states was elected by the legislature; this structure would therefore create a double layer of insulation from the people. Wilson also argued that “it was unnecessary as the Legislatures will meet so frequently.”⁴

Edmund Randolph of Virginia defended this provision as “necessary to prevent inconvenient chasms in the Senate.”⁵ At the time, some state legislatures met only once a year; Senate vacancies would therefore “be of more consequence” because the Senate would “have more power & consist of a smaller number than the other House.”⁶ Randolph further argued that the state executive could be trusted with the responsibility because the appointment would be for “so short a time.”⁷

The Ratification Debates

During the ratification debates, there was some debate between the Federalists and Anti-Federalists over this clause. Cato wrote in his fifth paper that the Constitution gave “the executive the unprecedented power of making temporary senators, in case of vacancies, by resignation or otherwise.”⁸ In Federalist No. 67, Hamilton suggested that “Cato was arguing the President—that is, the federal ‘Executive’—could fill a temporary Senate vacancy pursuant to the Recess Appointments Clause.”⁹ Hamilton responded that this clause grants “an express power . . . in clear and unambiguous terms, to the State Executives, to fill the casual vacancies in the Senate by temporary appointments.”

History Before Passage of the Seventeenth Amendment

According to the Congressional Research Service, temporary appointments of Senators by governors occasioned “only minor controversy.”¹⁰ Between 1789 and 1913, twenty of the 189 Senators appointed by governors were contested, and the Senate excluded only eight of these appointments.¹¹ Occasionally, state legislatures would deadlock on electing a Senator, and the seat would remain unfilled, sometimes for an extended period.¹² Governors would attempt to appoint a temporary Senator to ensure that the state’s representation in the Senate was not compromised by legislative deadlocks even if the legislature was not technically in recess. The Senate could and often did then exclude the would-be Senator.

By the mid-nineteenth century, voters began to agitate for some degree of popular election of Senators. A majority of states adopted mechanisms for de facto direct election of Senators.¹³

Adoption of the Seventeenth Amendment

The House of Representatives approved the Seventeenth Amendment in 1911. In the Senate, the primary sponsor of the amendment was Joseph L. Bristow of Kansas. Bristow noted that the language of Clause 2 “makes the least possible change in the Constitution to accomplish the purpose” of adopting election of Senators by popular vote.¹⁴ The requirement that the state executive issue a writ of election in the event of a Senate vacancy tracked the process for filling House vacancies almost verbatim.¹⁵

Clause 3 of the Seventeenth Amendment provided that “[t]his amendment shall not be so construed as to effect the election or term of any Senator chosen before it becomes valid as part of the Constitution.” This text made clear that the direct election of Senators was to take place prospectively. It would not displace sitting members of the Senate who had been elected by state legislatures under the original constitutional process.

Writs of Election

In the event of a Senate vacancy, Clause 2 provides that the state executive “shall issue writs of election to fill such vacancies.” This process is modeled after the House Executive Writs of Election Clause. (See Essay No. 12.) A writ of election is a legal command that an election be held. The Constitution does not specify how quickly the writ must be issued or how quickly the election itself must be held. However, the governor cannot decline to issue the writ. The courts have recognized that governors will balance two conflicting goals. On the one hand, the people have an interest in a speedy popular election to ensure full representation in the Senate. On the other hand, the state has an interest in conducting elections on a regularized basis to maximize voter participation and minimize administrative expense.

This issue has been litigated following several Senate vacancies. In June 1968, for example, Senator Robert F. Kennedy of New York was assassinated, but New York was permitted to postpone the election of his replacement until 1970 rather than being required to hold both a primary and a general election by the fall of 1968.¹⁶ In 1991, following the death of Senator John Heinz of Pennsylvania, a special election was scheduled, but instead of a primary for the political parties, the conventions of the two major parties could choose the candidates. The courts held that the Seventeenth Amendment did not mandate that party nominees be chosen by popular vote as long as the actual election was by popular vote.¹⁷ In 2008, Senator Barack Obama of Illinois stepped down to become President, but the state did not schedule a special election. Instead, the seat was filled in 2010 following the next regularly scheduled general election. Illinois Governor Rod Blagojevich would later be impeached, convicted, and imprisoned for bribery and corruption charges related to his actions in filling this vacancy. Constitutional amendments have been introduced in Congress to impose federal limits on the Senate vacancies process, but none has passed.¹⁸

The Executive’s Temporary Appointment Power

Almost all of the states authorize their governors to make a temporary appointment in the event of a vacancy,¹⁹ but some states have granted and removed this power for overtly political reasons. In 2004, Democratic Senator John Kerry of Massachusetts was running for President, and Republican Mitt Romney was governor. The Democratic legislature stripped the governor of his power to make a temporary appointment lest Romney temporarily appoint a Republican Senator. Five years later, in 2009, Democratic Senator Ted Kennedy was very ill, and there was a Democratic governor. The Democratic legislature restored the governor’s power to make a temporary appointment.²⁰ In 2024, Republican Senator Mitch McConnell of Kentucky had some health concerns. In response, the Republican Kentucky legislature stripped the Democratic governor of this power so that he could not fill McConnell’s seat if it became vacant.²¹

In most of the states that have granted the governor this power, the appointee will serve until the next regularly scheduled statewide election. In a minority of states, the governor is required to call a special election on a strict timeline.

Some states restrict whom the governor can appoint. In several states, this includes requiring that the appointee must be of the same party as the vacating Senator. In Utah, for example, the governor must appoint someone from a list of three prospects recommended by the vacating Senator’s party. Some scholars contend that once the governor is empowered to make these temporary appointments, the states cannot impose additional restrictions.²²

Open Questions

• Is there a Senate “vacancy” when voters elect an ineligible candidate?²³ In October 2000, Missouri Governor and Senate candidate Mel Carnahan died, but state law prohibited removing Carnahan from the ballot at that late juncture.²⁴ The following month, the majority of Missouri voters knowingly voted for the deceased Carnahan for Senator. After Carnahan’s death, Missouri’s lieutenant governor became governor. He could have declared the votes to be improper or “spoiled” ballots in support of an ineligible candidate but instead declared that the election had created a vacancy for purposes of the Seventeenth Amendment. He filled the vacancy with Carnahan’s widow, Jean Carnahan, and issued a writ of election for 2002. This strategy was not challenged at the time.²⁵
• Can a Senator’s “incapacity” trigger a “vacancy”?²⁶
• The Seventeenth Amendment provides that the “legislature of any State may empower the executive thereof to make temporary appointments.” Does the governor have any role in that process, or is that power reserved solely for the “legislature”? Could the governor veto a bill stripping him of the power to make temporary appointments?²⁷
• The Ineligibility or Sinecure Clause provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.”²⁸ In 1936, the governor of Michigan appointed Representative Prentiss Marsh Brown to fill a Senate vacancy.²⁹ For a brief period, Brown received a Senate salary that was increased during the time he had been elected to the House. Did the Sinecure Clause bar that appointment?³⁰ Is a vacant Senate seat an “office under the Authority of the United States”? A Senate seat is generally an elected position, but is a temporary Senate seat an appointed position?³¹

1. Art I, § 3, cl. 2. ↩︎
2. Art. I, § 2, cl 4. ↩︎
3. 2 Farrand’s 231. ↩︎
4. Id. ↩︎
5. Id. ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Storing 2.6.37. ↩︎
9. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 439–40 (2023). ↩︎
10. Thomas H. Neale, Cong. Rsrch. Serv., R44781, U.S. Senate Vacancies: Contemporary Developments and Perspectives 9 (2018), https://perma.cc/79S4-AAHN. ↩︎
11. Id. ↩︎
12. Todd J. Zywicki, Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment, 73 Or. L. Rev. 1007 (1994); Wendy J. Schiller, Charles Stewart III, & Benjamin Xiong, U.S. Senate Elections Before the 17th Amendment: Political Party Cohesion and Conflict 1871–1913, 75 J. of Politics 835 (2013). ↩︎
13. Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. L. Rev. 500 (1997). ↩︎
14. 47 Cong. Rec. 1482 (1911). ↩︎
15. Id. at 1483. ↩︎
16. Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968), aff’d 393 U.S. 405 (1969). ↩︎
17. Trinsey v. Pennsylvania, 941 F.2d 224 (3rd Cir. 1991). ↩︎
18. Neale, supra at 14–16. ↩︎
19. National Conference of State Legislatures, Vacancies in the United States Senate (Sept. 25, 2023), https://perma.cc/4F9F-3FJC. ↩︎
20. Louis Jacobson, Massachusetts Legislature Flip-Flops on Governor’s Senatorial Appointment Power, PolitiFact (Sept. 24, 2009), https://perma.cc/6KWU-XKCQ. ↩︎
21. Bruce Schreiner, Kentucky GOP Lawmakers Remove Democratic Governor’s Role in Filling US Senate Vacancies, Associated Press (Apr. 12, 2024), https://perma.cc/3YJU-D54Z. ↩︎
22. Vikram David Amar, Doubts About Mitch McConnell’s Health Implicate Important Questions Under the Seventeenth Amendment, Verdict (Aug. 11, 2023), https://perma.cc/7S6V-27PF. ↩︎
23. Zachary D. Clopton & Steven E. Art, The Meaning of the Seventeenth Amendment and a Century of State Defiance, 107 Nw. U. L. Rev. 1181, 1200–01 (2013). ↩︎
24. All About Missouri History: Elected Officials: United States Senators, Missouri Secretary of State, https://perma.cc/6VKT-784B. ↩︎
25. Michael G. Adams, Missouri Compromise: Did the Posthumous Senatorial Election of Mel Carnahan and Subsequent Appointment of Jean Carnahan Compromise Federal or State Law?, 29 N. Ky. L. Rev. 433 (2002). ↩︎
26. Clopton & Art, supra at 1200–01; Jack Maskell, Cong. Rsrch. Serv., Incapacity of a Member of Congress (2011). ↩︎
27. Josh Blackman, The Kentucky Legislature Removed the Governor’s Power to Temporarily Appoint a Senator, Volokh Conspiracy (Apr. 25, 2024), https://perma.cc/4EK2-XL63. ↩︎
28. Art. I, § 6, cl. 2. ↩︎
29. Biographical Directory of the United States Congress 1774–Present, https://perma.cc/P47Y-RF5V. ↩︎
30. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part VI: The Ineligibility Clause, 64 S. Tex. L. Rev. 209, 239–241 (2025). ↩︎
31. Josh Blackman, A Reply to Peter Keisler and Richard Bernstein, and Michael Luttig, on Section 3, Volokh Conspiracy (Feb. 7, 2024), https://perma.cc/W2TD-RUCY. ↩︎