The Executive Writs of Election Clause

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

—Paul Taylor

Introduction

Normally, members of the House of Representatives are elected for two-year terms, but, what if a vacancy arises because of death or resignation? Unlike what happens when there is a vacancy in the Senate, governors cannot make a temporary appointment. Instead, the state “Executive Authority . . . shall issue Writs of Election to fill such Vacancies.”

A writ of election is a legal command for an election to be held. The Constitution does not specify how quickly the writ must be issued and the election itself must be held. However, the courts have held that a governor cannot decline to issue the writ. The clause vests the governor with the responsibility of calling such special elections to fill vacant House seats. “It is obvious,” Justice Joseph Story wrote of the clause, “that such a power ought to reside in some public functionary” and that the Constitution vests such power with “the State Executive, which is best fitted to exercise it with promptitude and discretion.”¹

The House of Representatives is unique because it is the only part of the federal government that the Constitution specifies must be composed only of those who are elected. To that end, regarding the filling of vacancies in House membership, Article I, Section 2, Clause 4 does not allow for temporary appointments; it provides instead for mandatory elections, stating that governors “shall” issue “Writs of Election” (writs being a form of legal command). That is in contrast to the Seventeenth Amendment, which provides that “the legislature of any State may empower the executive thereof to make temporary appointments [to the Senate] until the people fill the vacancies by election as the legislature may direct.” (The Seventeenth Amendment is discussed in Essay No. 204.)

History Before 1787

During the colonial era, King George III would delay calling for special elections to fill vacancies in colonial legislatures. This practice was so unpopular in the colonies² that it was listed as one of the grievances against the English king in the Declaration of Independence: “He has dissolved representative houses repeatedly, for opposing with manly firmness his invasion of the rights of the people. He has refused for a long time, after such dissolutions, to cause others to be elected. . . .”

The wording of the clause drew from colonial precedents. The 1776 Pennsylvania constitution provided for the filling of legislative “vacancies” by “certain and regular elections” but was not clear regarding who had the authority to call such elections.³ The 1776 Virginia constitution provided that each house of the legislature should issue writs for the filling of “intermediate vacancies.”⁴ The 1778 South Carolina constitution allowed the legislative houses to issue writs for legislative vacancies “occasioned by death.”⁵ The 1777 New York constitution had no provision at all for the filling of legislative vacancies but did provide for the filling of vacancies occasioned by the resignation of the governor or lieutenant governor.⁶ The 1777 Vermont constitution allowed the filling of vacancies created by the resignation of state “officers” but said nothing about filling legislative vacancies.⁷ The 1786 Vermont constitution allowed for the replacement of “officers” whose positions were vacant because of “death or otherwise” but still said nothing about filling legislative vacancies.⁸

Of the remaining early state constitutions, some had provisions allowing legislative bodies to fill vacancies.⁹ Others had vacancy provisions that were silent on the subject of who had the authority to call elections to fill vacancies.¹⁰ And under the Articles of Confederation, congressional delegates were “annually appointed, in such manner as the legislature of each state shall direct.”¹¹

The Constitutional Convention

On July 26, 1787, Virginia delegate Edmund Randolph, a member of the Committee of Detail, produced a “draft sketch” of a constitution.¹² That draft provided that the filling of “Vacancies by death disability or resignation shall be supplied by a writ from the . . . governor of the state, wherein they shall happen.”¹³ Randolph’s draft was taken up by the Committee of Detail.¹⁴

However, that was the last time during the Convention that this wording appeared. The draft reported by the Committee of Detail to the full Convention provided that “Vacancies in the House of Representatives shall be supplied by writs of election from the executive authority of the State, in the representation from which it shall happen.”¹⁵ The Convention unanimously agreed to the provision for filling House vacancies.¹⁶ At the end of the Convention, the Committee of Style tweaked the wording so that the House provision read, “When vacancies happen in the representation from any state, the Executive authority thereof shall issue writs of election to fill such vacancies.”¹⁷

Early Practice

In 1790, William Pinkney was elected to the House of Representatives from Maryland, but he never took his seat and in September 1791 sent a letter to the governor and council of Maryland seeking to resign.¹⁸ The governor then issued a writ for a new election.¹⁹ Governors also issued writs of election to fill House seats left vacant by Joshua Seney,²⁰ John Fracis Mercer,²¹ and Uriah Forrest.²²

Judicial Precedent

The U.S. Court of Appeals for the Seventh Circuit ruled in 1970 that the clause imposes a mandatory duty on governors to issue writs of election to fill vacancies in the U.S. House of Representatives.²³ More specifically, the court held that in performing that duty, the governor has the discretion to choose the day of the week on which writs of election will be issued. However, the governor does not have the discretion to decide against issuing the writs of election altogether. The people’s right to choose representation in the House of Representatives is “a continuing right, which is not to be defeated by death of a Representative once chosen, or other cause of vacancy.”²⁴

The U.S. Court of Appeals for the Sixth Circuit has held that the clause imposes a mandatory duty, leaving only the possibility that a governor could avoid such duty when the time remaining in the congressional term “is truly de minimis.”²⁵ The rule had been articulated earlier in United States Term Limits, Inc. v. Thornton²⁶ when Justice Clarence Thomas indicated in his dissenting opinion that the clause prescribes an affirmative duty of the state executive to issue a writ whenever a vacancy occurs.

1. Joseph Story, A Familiar Exposition of the Constitution of the United States, § § 87 (1840). ↩︎
2. A General Meeting of the Freeholders of the County of Mecklenburg on the 29th Day of July, 1774, in Archibald Henderson, An Interesting Colonial Document, 28 Va. Mag. Hist. & Biography 54, 56 (1920). ↩︎
3. Pa. Const. of 1776, art. I, § 6. ↩︎
4. Va. Const. of 1776, art. II, para. 27. ↩︎
5. S.C. Const. of 1778, art. XVIII. ↩︎
6. N.Y. Const. of 1777, arts. XX–XXI. ↩︎
7. Vt. Const. of 1777, ch. 2, § XVIII; id. ch. 2, § XX. ↩︎
8. Vt. Const. of 1786, ch. 2, § 11. ↩︎
9. Del. Const. of 1776, art. 5; Ga. Const. of 1777, arts. VII, XVII; N.C. Const. of 1776, arts. X, XXV–XXXIII; Md. Const. of 1776, art. VII ; id. art. XIX. ↩︎
10. Mass. Const. of 1780, pt. 2, ch. 1, § 2, art. IV; N.H. Const. of 1784, pt. 2, para. 14. ↩︎
11. Articles of Confederation, art. V, § 1. ↩︎
12. Farrand’s Supp. 183–93. ↩︎
13. Id. at 185. ↩︎
14. 2 Farrand’s 137, 140, 142. ↩︎
15. Id. at 179. ↩︎
16. Id. at 231. ↩︎
17. Id. at 591. ↩︎
18. H.R. Jour., 2d Cong., 1st Sess. 461 (Nov. 23, 1791) (reprinting the report of the Committee of Elections describing the situation). ↩︎
19. Id. ↩︎
20. H.R. Jour., 2d Cong., 2d Sess. 677 (Jan. 23, 1793). ↩︎
21. H.R. Jour., 3d Cong., 1st Sess. 192–93 (May 31, 1794). ↩︎
22. H.R. Jour., 3d Cong., 2d Sess. 279 (Jan. 1, 1795). ↩︎
23. Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir. 1970). ↩︎
24. Id. at 1333, 1336. ↩︎
25. ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 649 (6th Cir. 2004). ↩︎
26. 514 U.S. 779 (1995) (Thomas, J., dissenting). ↩︎