If McCain Wins, A Constitutional Dispute May Follow: Why Arizona's Process to Pick a Senator to Temporarily Fill McCain's Seat Is Unconstitutional

As the two parties sprint toward the November election finish line, analysts are focused on who will take the White House, and what the makeup of Congress will be. But there is at least one unnoticed, important, and complex way in which these two questions are linked.

No matter who prevails, there will be a vacancy in the Senate until an election for a successor can be held, and the relevant state's governor will be the one who chooses the temporary Senator. Should Senator Obama become President, the Democratic Governor in Illinois (Rod Blagojevich) would almost certainly replace Obama with another Democrat, resulting in no net partisan change in the upper legislative house. But should John McCain win the Presidency, the Democratic Governor in Arizona (Janet Napolitano) might be inclined to appoint a Democrat to replace Senator McCain, thereby giving the Democrats an extra Senate seat to check and balance a McCain presidency (at least until an election is held, in which the temporary Senator will have quasi-incumbent status).

Here is where things get interesting. Arizona is one of just a few states that purports by statute to require the Governor to fill a Senate vacancy with someone of the same political party as the Senator whose departure creates the opening. But these state statutory limits would seem, for reasons I will explain, to violate the federal Constitution - in particular, the Seventeenth Amendment - and thus be null and void.

The Seventeenth Amendment: Its Text and History

The Seventeenth Amendment, adopted in 1913, abolished legislative selection of U.S. Senators in favor of direct popular election. The last part of the Amendment says, concerning vacancies between elections, "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."

The Amendment's language thus explicitly differentiates between a state "legislature" and a state "executive" authority, and does not authorize a state legislature to make or constrain any temporary appointments, but rather only authorizes that legislature to "empower the [state] executive [ ] to make [the] appointments ...."

In other words, the Amendment creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions. (By contrast, legislatures are explicitly empowered by the words "as the legislature may direct" to structure replacement elections). When it comes to gubernatorial appointments, the legislature's involvement is limited to simply determining whether governors should be allowed to make temporary appointments at all, or whether, instead, a replacement election will be held promptly enough such that a temporary appointment is unnecessary.

The Seventeenth Amendment's History Is In Accord with This Interpretation

This straightforward textual reading of the Amendment is confirmed by the historical circumstances that prompted the Seventeenth Amendment itself. As noted earlier, before the early 1900s, state legislatures elected U.S. Senators. Backers of the Seventeenth Amendment, distrustful of state legislatures and the unelected party bosses who might control them, wanted to put state legislatures out of the business of picking Senators.

The major part of the Seventeenth Amendment thus moves elections of Senators from state legislatures to the people of each state themselves. But the Amendment's choice of Governors over state legislatures to fill Senate vacancies was not accidental, and also fits within this popular-election focus quite neatly: Governors, unlike state legislatures, are elected by precisely the same voters who pick Senators, in statewide contests that cannot be skewed by various kinds of common gerrymandering.

The framers of the Seventeenth Amendment knew well that state legislators often came from legislative districts whose lines were drawn in such a way that the resulting legislative body did not represent all people within the state equally. There was a bias in favor of rural, white areas and against urban areas with more recent immigrants and persons of color. Part of the distrust of state legislators arose from this gerrymandering problem, which does not plague a governor chosen by all the voters of a state at-large. And even though some problems of legislative gerrymandering (for example, the bias in favor of rural, white areas) have been addressed, legislative district lines are still plagued in the Twenty-First Century by the kind of partisan excess that leads to a legislature whose makeup exaggerates one political party's strength in the state.

The Seventeenth Amendment Not Only Prefers Governors to State Legislators, But Also Was Wise to Make that Choice

Thus, there was, and is still today, a good reason for the Seventeenth Amendment's textual preference for Governors over state legislators: Governors can lay claim to represent the people of a state better than do elected but malapportioned legislatures in this context, because Governors are elected in the exact same way that the Seventeenth Amendment requires Senators to be picked.

In short, the straightforward reading of the Seventeenth Amendment's text harmonizes its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

Giving Governors, who are accountable to (and often recallable by) the statewide electorate, discretion to fill Senate vacancies makes good practical sense too. Sometimes, a Senate vacancy is itself created by a party scandal that taints not just the departed incumbent, but also his entire party. Surely requiring a replacement of the same party makes seems unwise in such a circumstance. Nor would it make sense in the kind of situation that is at least possible this fall, in which the state's (Arizona's) electorate may pick a Democrat over the Republican Presidential candidate (McCain) even as that candidate wins the White House because of the national electoral college vote.

Governors can, of course, take party continuity into account if they -- and the state's electorate -- seem to want to. But under the Constitution Governors cannot be bound to pick replacements who meet particular qualifications such as membership in a particular party.

Whatever one thinks about the meaning of the Seventeenth Amendment, this is a dispute that should be looked into before the election, and not just afterward. We saw eight years ago how messy things get when important election law constitutional issues are ignored until after the votes are cast.

Vikram David Amar is the Associate Dean for Academic Affairs and a Professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.