U.S. Senator James (Jim) Inhofe of Oklahoma has announced that he will be retiring from the Senate when the 117th Congress ends on January 3, 2023. Inhofe has served in the Senate since 1994 and his current term runs until 2027. Oklahoma state law provides that “if a vacancy or irrevocable resignation occurs in the office of a member of the United States Senate from Oklahoma” the state must hold a special election to fill the empty or to-be-empty seat. State law defines an “irrevocable resignation” as “a written letter of resignation to the Secretary of State . . . that serves notice of the Senate member’s resignation on a date certain.” In his letter, dated February 28, Inhofe gave an “irrevocable pledge” to step down next January 3. In accordance with state law, Oklahoma Governor Kevin Stitt thereafter issued an executive order for a special primary election to be held on June 28 and the special general election to choose Inhofe’s successor on November 8.
Oklahoma attorney Stephen Jones has now filed with the Oklahoma Supreme Court a petition for writs of mandamus and prohibition to bar the state election board from proceeding with the primary and general elections. Jones argues that the Seventeenth Amendment of the U.S. Constitution prohibits the holding of a special election to replace a member of the Senate prior to the Senator actually leaving office. Jones’s argument is that because the Seventeenth Amendment provides that the state executive authority “shall issue writs of election” only “[w]hen vacancies happen,” an election in anticipation of Inhofe’s retirement is prohibited. In other words, according to Jones, on November 8, a vacancy will not yet have happened and so an election on that date would be unconstitutional. Jones also asserts that under state law these elections also cannot be held under after Inhofe has actually retired. The Oklahoma Supreme Court has scheduled oral argument in the case for March 23.
The Inhofe episode and the state supreme court petition raise many issues, including some that have no clear answer under settled law. So, in classic law-school fashion, we offer in this two-Part Series issue spotting (and issue analysis) rather than definitive issue resolution. To begin, we lay out the relevant text of the Seventeenth Amendment:
[Section1]: The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.
[Section 2]: 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.
With this text in mind, let’s turn to some of the issues implicated:
Issue #1: Can a State Hold a Special Election While the Senate Seat is Still Occupied?
There does not appear to be settled judicial precedent on this question (certainly Stephen Jones doesn’t cite any). Jones’s brief in support of the petition for relief in the Oklahoma Supreme Court focuses on the word “vacancy,” citing Black’s Law Dictionary for the idea that a vacancy means an actual lack of occupancy. In other words, Jones argues, there is no vacancy until the office is actually unoccupied—empty. We think this seems right, but we would focus more on the word “happen” more than the word “vacanc[y]” in the Seventeenth Amendment. Do vacancies “happen” only when an office becomes unoccupied, or do they “happen” before that? “Happen” means “occur” or “take place” and these terms seem to us styled in the present tense. A vacancy doesn’t happen until the vacancy exists, if we are being textual sticklers. Had the Seventeenth Amendment used a phrase like “when vacancies arise,” or “when vacancies become apparent” or “when vacancies need to be filled,” then the textual argument Jones makes would be a good deal weaker. We’re not certain that the choice as between these kinds of formulations in the Seventeenth Amendment was intentional, but on its face Jones’s reading of the Amendment’s words is at least plausible, and perhaps even the most natural.
But we note that in 2014 in NLRB v. Noel Canning, the Supreme Court adopted what it viewed to be a possible, though not the most natural, meaning of the provision of Article II, section 2, which empowers the President to “to fill up all Vacancies that may happen during the Recess of the Senate.” The Court held that “may happen,” within the meaning of Article II, includes vacancies that initially occur prior to a Senate recess but that continue on during the recess, and not just those that first come into existence during a recess. According to the Court, to “happen,” when used in connection with the word, “vacancy,” can plausibly be understood to refer to a continuing state rather than a moment in time. Noel Canning doesn’t resolve our Seventeenth Amendment question, in part because the vacancy in that case was in existence at the moment (during the recess) that a replacement appointment was made. But Noel Canning does caution against concluding quickly that vacancies happen only at the moment a seat is emptied.
Perhaps, then, the text is not so clear as to foreclose consideration of other factors, such as the reasons the Seventeenth Amendment (and direct election in general) came about. The move from legislative to direct election of U.S. Senators, which began in the early to mid-nineteenth century and built up steam during the Progressive Era and culminated in ratification of the Seventeenth Amendment, was driven by a variety of sentiments, including: (1) the perception that bribery and corruption had tainted the state legislatures’ choice of Senators; (2) the related belief that private interest groups dominated state legislatures to the point where senatorial choices did not adequately represent the preferences or interests of ordinary citizens; and (3) the perception that state legislators were spending too much time on the “national” matter of senatorial selection and leaving local matters untended.
But alongside these motivations, another of the prominent forces behind the move to direct election and the Seventeenth Amendment was popular dissatisfaction with deadlocks in state legislatures that delayed the filling of vacant senatorial seats. As the great Senate historian George Haynes has documented, many U.S. Senate seats remained unfilled for long periods of time in the mid-19th century, frustrating the citizens of many of the affected states. Equal representation of each state in the Senate, after all, was an important structural feature (a compromise really) agreed upon at the Philadelphia convention in 1787 and supported by the ratification processes thereafter. (The feature was important enough to be mentioned in Article V’s amendment procedures. Whether or not Article V’s prohibitions on amendments that disturb equal senate representation absent consent of all affected states is legally meaningful—since amendments that move power away from the Senate but that retain equal representation there are not explicitly forbidden—the so-called “Article V Senate proviso” illustrates the importance of the equal-representation-in-the-Senate norm, regardless of how undemocratic that might be, in the constitutional scheme.) Yet equal representation in the Senate means much less if seats can easily remain vacant for a long time. One seat unfilled means a state has only half its representation.
Accordingly, seamless occupation of all Senate seats—what Oklahoma, in its statutory scheme allowing for anticipatory elections, is trying to facilitate—seems in keeping with the big goals of the Seventeenth Amendment itself. Indeed, the provision in Section 2 of the Seventeenth Amendment providing for the possibility of temporary gubernatorial appointments appears to be aimed primarily at avoiding gaps in a state’s full Senate representation.
Notice, though, that Section 2 does not require or guarantee that temporary gubernatorial appointments will be made; it merely authorizes state legislatures to provide for the possibility of such appointments (saying that state legislatures “may” “empower”—two words that are permissive, not mandatory—governors to make temporary appointments). This brings us to another big goal of the Seventeenth Amendment—to fill Senate vacancies with popular elections whenever possible. That is, after all, the thrust of Section One of the Seventeenth Amendment, and also the reason Section Two permits state legislatures to provide for special elections in between the regularly scheduled six-year intervals. This obvious preference for popular elections might further explain why Section Two permits but does not require gubernatorial appointments; presumably, legislatures were given the authority to choose not to authorize vacancy-filling appointments in the event that the legislatively provided-for special popular election (which, again, is allowed in the last part of the Seventeenth Amendment) was scheduled early enough that a temporary gubernatorial appointment would not be worth the effort and might even create more harm than good, for example, by giving the occupant (if she ran in the special election) a soft incumbency advantage that might strike some as unfair (since she had never been elected in the first place).
On top of all this, there is non-judicial precedent to consider. In Oklahoma, it turns out that U.S. Senators have previously been elected in special elections held while the office was still occupied. Inhofe himself was elected in a special election to fill out the term of David Boren who had announced he would be resigning his seat to become President of the University of Oklahoma but who was still serving in the Senate on the day Inhofe won the special election. So, too, in 2014, James Lankford was elected to replace Tom Coburn in a special election held after Coburn had announced his retirement (with two years left in his term) but had not yet actually retired. Two examples from one state likely do not constitute the sort of “long settled and established practice” the Court in Noel Canning said should be given “great weight” in constitutional interpretation. Nonetheless, if the unchallenged practice counts, it counts against Jones’s argument before the state court.
Finally, while Jones argues that the Seventeenth Amendment bars—he says “does not permit”—an anticipatory election, we note that the Amendment itself contains no prohibitory language. Instead, it requires the state’s executive to issue a writ of election to fill a vacancy and it permits the state legislature to empower the executive to make temporary appointments. In this sense, the constitutional violation Jones is actually complaining about is not the planned special election in November but the failure of the state to hold an election, in accordance with the Seventeenth Amendment, after Inhofe actually steps down (assuming he does) in January. Jones’s petition to the state court, then, is best understood as directed at preventing assertedly unconstitutional action that will occur in January when the state sends the winner from November to Washington instead of at that time scheduling and holding an election to choose Inhofe’s successor.
Issue #2 But What About the Possibility of a Substantial Lag Between a Special Election and Actual Replacement in Office?
The general purposes of the Seventeenth Amendment, combined with seemingly accepted practice in Oklahoma (and perhaps elsewhere—we haven’t undertaken a 50-state review), might therefore overcome the plausible textual reading Jones offered in his brief to the Oklahoma Supreme Court. But Jones does raise an important counter-consideration—the possibility that if special elections can be held in advance of actual vacancies, it is possible for a Senator to signal retirement many years into the future, which could result in an election problematically far away from the actual replacement in personnel. For example, Jones argues, invoking the Senate seat currently held by Lankford:
Senator James Lankford or his successor will begin a six-year Senate term on January 3, 2023. [Under the state’s reading of state law] [t]here is nothing stopping Senator Lankford or his successor from submitting an irrevocable resignation on January 3, 2023 with an effective date many years in the future, such as January 3, 2028. If [such an] irrevocable resignation triggers [state law providing for a] special election, then the special election in this example would take place in 2024. However, the person elected in the 2024 special election would not assume the office for over three years. In the interim, there would be another [regularly scheduled] general election in 2026. It would be absurd and unreasonable to elect a replacement Senator in 2024 who would not take office until more than a year after a second intervening general election in 2026.
We think Jones has a point here; elections are worthy of respect in part because they are “ripe”—that is, they are held close enough in time to the enactment of policies or placement of persons into office that are on the ballot. In this regard, perhaps an analogy to the constitutional ratification process under Article V is worth considering. Some people think that when, as in the setting of the 27th Amendment, state ratifications are spread out across too long a period of time, there is no contemporaneous consensus among the American people of the kind that seems required before an amendment ought to be added to the Constitution. In the Article V context, the possibility of recission by states to undo their prior ratification, so long as they do so before the magic number of 38 states (the 3/4ths of the states required by Article V for adoption) have ratified, is perhaps a solution to the problem of “stale” amendments. But query whether a state could have more than one special election prior to the Senate vacancy actually occurring to address the problem of a “stale” special election. We certainly don’t permit Senators to be “recalled” (the way many state officers can be) by action of the voters during regular six-year terms, but maybe we could permit such an electoral change of mind or heart in the context described by the hypothetical in Jones’s brief. We offer this more as a question than even a tentative answer.
On the facts of the present case, however, the anticipated special election will be held in November 2022, quite close to the anticipated vacancy in January 2023. Indeed, the particular special election at issue here is just as ripe as regular Senate elections (which are always held in November, two months ahead of actual assumption of the office). So perhaps the slippery-slope problem Jones raises can be rejected on the simple ground that the present facts don’t present the need for line-drawing or other mechanisms to deal with the hypothetical.
Still, that conclusion presupposes that Senator Inhofe will not—or cannot—have a change of mind between now and next January, something Jones openly worries about. We take up that question and related complexities in Part Two.