Executive Writs of Election

The Heritage Guide to the Constitution

Executive Writs of Election

Article I, Section 2, Clause 4

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

Although the phrasing of the Executive Writs of Election Clause varied until the Committee of Style established its final wording, there was no dispute among the Framers as to the necessity of having vacant House seats filled by special election. James Madison wrote in The Federalist No. 52, “As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration [the House] should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.” The House of Representatives is unique in that it is the only part of the federal government that is required by the Constitution’s text to be composed only of those who are elected.

The clause vests the governor with the responsibility of calling such special elections to fill vacant House seats. Justice Joseph Story wrote of the clause that “[i]t is obvious, 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.” In fact, the clause combined the principles of those who did not want to see “the people” unrepresented in any part of the government with those who desired to continue to support state authority over the electoral process.

The Seventh Circuit Court of Appeals has ruled that the clause imposes a mandatory duty on governors to issue writs of election to fill vacancies in the United States House of Representatives. Jackson v. Ogilvie (1970). More specifically, the court held that in performing that duty, the governor has the discretion to choose one day of the week over another on which to issue writs of election, but he does not have the discretion to decide against issuing the writs of election altogether. The Sixth Circuit Court of Appeals has also held the clause imposes a mandatory duty, leaving only the possibility that a governor could avoid such duty when the time remaining on the congressional term “is truly de minimus.” American Civil Liberties Union of Ohio, Inc. v. Taft (2004). The rule had been articulated earlier in United States Term Limits, Inc. v. Thornton (1995), when Justice Clarence Thomas for the four-person dissent indicated that the clause prescribes an affirmative duty on the state executive to issue a writ whenever a vacancy occurs.

Paul Taylor

Chief Counsel, House Judiciary Subcommittee on the Constitution and Civil Justice

Paul Taylor, Alternatives to a Constitutional Amendment: How Congress May Provide for the Quick, Temporary Filling of House Member Seats in Emergencies by Statute, 10 J.L. & Pol'y 373 (2002)

Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir. 1970)

United States Term Limits v. Thornton, 514 U.S. 779 (1995) (Thomas, J., dissenting)

ACLU of Ohio v. Taft, 217 F. Supp. 2d 842 (S.D. Ohio 2002)