Executive Writs of Election

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

Article I, Section 2, Clause 4

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. 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. Similarly, in United States Term Limits, Inc. v. Thornton (1995), Justice Clarence Thomas for the four-person dissent indicated that the clause prescribed an affirmative duty on the state executive to issue a writ whenever a vacancy occurred. Nonetheless, in ACLU v. Taft (2002), the district court held that the governor enjoyed substantial discretion as to the timing of special elections and, further, that if the unexpired term were exceedingly short, the governor possessed discretion to forgo calling the election at all.

Paul Taylor
Chief Counsel
House Judiciary Committee