Vacancies in the Senate

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.

Amendment XVII

The Seventeenth Amendment, ratified in 1913, provided for the direct election of United States Senators, replacing the original method that had left the choice to state legislatures. Previously, state legislatures could choose Senators and fill vacancies at any time during a regular or special legislative session. After the ratification of the Seventeenth Amendment, it was recognized that the expense and inconvenience of election by popular vote made it necessary to schedule elections for Senators at regular intervals. To avoid the hardship to a state suffering a lack of representation pending a regular election, the Seventeenth Amendment also provided for methods of election or appointment to fill any unexpired term.

The language and history of the clause indicate that the states have the power to balance conflicting goals of a speedy popular election versus the state's interests in conducting elections on a regularized basis so as to maximize voter participation and minimize administrative expense. Thus, when the death of Robert F. Kennedy created a vacancy in New York's Senate delegation in June 1968, New York was permitted to postpone the election of his replacement until 1970, rather than being required to hold both a primary and general election by fall 1968. Valenti v. Rockefeller (1969). Following the death of Senator John Heinz in 1991, Pennsylvania was permitted to fill the vacancy by a special election, with the candidates to be chosen by party conventions of the state's two major parties. The Court held that the Seventeenth Amendment did not mandate that party nominees be chosen by popular vote, so long as the actual election was by popular vote. Trinsey v. Pennsylvania (1991).

The clause does not define when a vacancy exists. During the 2000 election, the people of Missouri knowingly voted for the deceased Mel Carnahan for Senator. The governor of the state declared this election to have created a vacancy, which he filled by appointing Carnahan's widow, Jean Carnahan, and then issued a writ of election for 2002. It remains an open question, however, whether the voters can create a Senate "vacancy" by knowingly voting for an ineligible candidate and allowing the governor to fill the position with an individual of his choice, as opposed to simply declaring the votes to be improper or "spoiled" ballots.

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Todd Zywicki
Foundation Professor of Law
George Mason University School of Law