[EL] link to scholarly amicus brief on 17th amendment

[Charles H Stewart]

The writers of the amicus brief could have added one further point to bolster their analysis of the un-amended constitution.  Before the 17th Amendment, it was possible for a state legislature to adjourn sine die still deadlocked over the election of a senator.  This would then leave a vacancy in the Senate seat.  Early on, governors attempted to fill this vacancy that was caused by state legislative gridlock, but the Senate established a precedent that it would not seat any senator thus appointed by the governor.  Therefore, you could imagine a situation in which a senator died, the governor appointed a temporary replacement, the subsequent state legislature deadlocked over the election of the senator to complete the term, thus leaving the seat now vacant and unable to be filled (again) by the governor.  By the Senate refusing to seat a gubernatorially appointed senator filling a seat vacant because of legislative gridlock, it reinforced the constitutional expectation that senators be elected by state legislatures.

Of course, following that precedent, one could argue that the current Senate should also refuse to seat a “temporary” senator if the governor refuses to issue a timely election warrant to fill the vacancy via election.  But, that would be a different century.

Charles

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Charles Stewart III
Kenan Sahin Distinguished Professor of Political Science
The Massachusetts Institute of Technology
Cambridge, Massachusetts   02139
617-253-3127
cstewart at mit.edu

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard Winger
Sent: Tuesday, September 10, 2019 4:55 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] link to scholarly amicus brief on 17th amendment

Some law professors and history professors have filed this amicus in the 9th circuit in the Arizona case on whether the state is obliged to call an election to fill John McCain's US Senate vacancy earlier than November 2020.  McCain died in August 2018.

http://ballot-access.org/wp-content/uploads/2019/09/Amicus-Brief-in-Tedards-v.-Ducey-as-filed-09042019.pdf

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
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