Now that one U.S. Senate vacancy—that created by the recent death of Dianne Feinstein (D-CA)—has been filled (via California Governor Gavin Newsom’s appointment of fellow Democrat Laphonza Butler), attention is turning back to what might happen if another vacancy, of the seat currently filled by Bob Menendez (D-NJ), arises.
The question is increasingly ripe because on September 22, Menendez was indicted on federal corruption charges. Knowledgeable readers may recall that this isn’t the first time Menendez has been indicted; federal prosecutors dropped different corruption charges against him in 2018 following a mistrial, and Menendez won reelection later that year. However, his political situation seems more precarious now. New Jersey Democratic Governor Phil Murphy and a majority of Senate Democrats (including fellow New Jerseyan Cory Booker) have called on him to resign. Should Menendez acquiesce to those demands or be expelled from the Senate (which would require 2/3 of the Senate to eject him), New Jersey law empowers Murphy to appoint a temporary replacement. Here is the statute’s text:
If a vacancy shall happen in the representation of this State in the United States senate, it shall be filled at the general election next succeeding the happening thereof, unless such vacancy shall happen within 70 days next preceding such election, in which case it shall be filled by election at the second succeeding general election, unless the governor of this State shall deem it advisable to call a special election therefor, which he is authorized hereby to do.
The governor of this State may make a temporary appointment of a senator of the United States from this State whenever a vacancy shall occur by reason of any cause other than the expiration of the term; and such appointee shall serve as such senator until a special election or general election shall have been held pursuant to law and the Board of State Canvassers can deliver to his successor a certificate of election.
Unlike a handful of vacancy statutes from other states (like Kentucky), the New Jersey law does not run afoul of the U.S. Constitution’s Seventeenth Amendment by improperly constraining Murphy’s discretion—either with respect to the governor’s leeway to make an appointment or not, or with respect to latitude the governor has to appoint someone of any political party. Still, the New Jersey statute raises several interesting legal questions.
One is what, exactly, counts as a “vacancy” that needs to be “filled.” Another is whether the statute’s empowerment of the governor to call a special election when he “shall deem it advisable” represents a constitutionally problematic delegation of authority. And a third is whether Murphy can lawfully appoint his wife, Tammy, who is reportedly interested in Menendez’s seat.
When is there a “vacancy” that must be “filled”?
The issue of when, precisely, a Senate “vacancy” occurs is less straightforward than it may appear, as a 2022 lawsuit in Oklahoma demonstrated. The question might be vexing in New Jersey as well, albeit in a specific hypothetical scenario. Consider a situation in which Menendez departs the Senate within 70 days of the November 2024 general election and Murphy appoints an interim successor. Under these circumstances, the New Jersey statute quoted above (that says in such a case the vacancy “shall be filled by election at the second succeeding general election”) might be read to mean (given that New Jersey law provides that “general elections[s] shall be held . . . in November each year”) that the vacancy-filling election would occur at the yearly general election in November 2025. Yet Menendez’s term is set to expire after the November 2024 election. So the question arises: Would the winner of the November 2024 election be able to join the Senate in January 2025, or would the interim successor be able to argue that s/he is entitled to remain in office until at least November 2025?
We think the answer has to be that the November 2024 election winner will be sworn into the Senate in January 2025. While we are not experts in New Jersey law, the state statute seems to compel this result. The language providing that “[the vacancy] shall be filled by election at the second succeeding general election” presumes that there exists (at the time of that second succeeding general election) a “vacancy” to be filled. Yet as of January 2025, there would no longer be any “vacancy” in the Senate seat—the seat will have been (properly) filled by the November 2024 election winner. This reading is confirmed by the second paragraph of the New Jersey statute, which provides that an interim appointee serves “until a special or general election.” Because there will be a general election in November 2024, state law itself prevents the interim appointee from serving after the November 2024 election winner has been determined. (Indeed, under the state law, one could argue that the November 2024 winner might automatically take the seat even before the new Senate is sworn in two months later.)
If the text of New Jersey’s law inadvertently empowered an interim successor to serve until at least November 2025, such a result would, we have confidence, be foreclosed by the U.S. Constitution, which supersedes any state law to the contrary. The Seventeenth Amendment provides that senators are elected for terms of “six years.” Allowing the interim successor to serve until November 2025 would thus contradict the Amendment by effectively creating a longer term.
Does the New Jersey statute unconstitutionally delegate authority to the governor?
So far, so good for the New Jersey law. But things get trickier from here. New Jersey “authorize[s]” Governor Murphy to call a special election to fill a Senate vacancy if he “shall deem it advisable.” This provision was invoked in 2013 by then-Governor (Republican) Chris Christie, who called an October 2013 special election to fill Senator Frank Lautenberg’s seat, as opposed to waiting to fill the seat via the November 2013 general election. Commentators suggested that Christie, who faced reelection at the November election, intentionally broke the two elections apart to avoid having to appear on the same ballot as the Democratic Senate nominee. Democrats even sued to have the two elections occur simultaneously in November of 2013.
Although state courts upheld the October special election—noting that the legislature “has delegated broad authority to the State’s governor”—skeptics of legislative delegations of power may take issue with the state statute. However, the delegation appears consistent with the Seventeenth Amendment, which provides in relevant part:
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.
To be sure, the Amendment empowers the “legislature” (rather than the “executive authority” alone) to regulate vacancy-filling elections. Yet we do not think this language should be read to prevent a state’s statutes from affording discretion to the governor about whether to call a special election. Significantly (although we haven’t delved into New Jersey constitutional history and doctrine), the nondelegation principles may be weaker here than at the federal level. Article I of the federal Constitution discusses “legislative Powers herein granted,” and Article II declares that “The executive Power shall be vested in a President of the United States of America.” In contrast, the U.S. Constitution does not dictate any particular separation of powers at the state level; as a general matter it requires only that states have “a Republican Form of Government.”
It is true (as one of us has pointed out in scholarly writings) that the Seventeenth Amendment distinguishes between the executive and legislature in ways that history suggests was intentional. That textual distinction and the history behind it explain why elected multi-member legislative bodies were not trusted to make temporary appointments themselves, or to constrain the governor’s choice as to whether and whom to appoint. And the executive cannot unilaterally make regulations for how special elections are to be conducted. Yet nothing in the text forecloses a state’s lawmaking system from giving the executive discretion to call a special election. (In the same way, governors could choose—but cannot be required—to appoint interim senators based on input from other entities in the states’ lawmaking systems.)
The propriety of the delegation is further strengthened by the narrow scope of the governor’s delegated power. As we would interpret the statute, Murphy does not have unbridled discretion to dictate the timeline for filling a vacancy. Rather, the statute (best read to avoid constitutional problems) seems to provide only that he may call for the input of New Jerseyans (via a special election) when such a special election would occur before the general election at which the vacancy would otherwise be filled. That reading accords with ordinary understandings of what “special” elections—they are “special” insofar as they take place prior to when a regularly scheduled election, at which the voters could decide, would otherwise be held. Although some might push back against this reading, logic and practice (in addition to constitutional avoidance) seem to support it; we, at least, are unaware of any special election to fill a Senate vacancy in New Jersey that has ever been set for a date after (rather than before) the next regularly scheduled general election (or the second succeeding general election, as the case may be, depending on the date vacancy happens.) Under our reading, the statute’s delegation of authority to the governor actually promotes rather than frustrates democracy (and nondelegation principles are, after all, invoked in the name of democracy) by enabling the people, the preferred decision makers under the terms and the overall spirit of the Seventeenth Amendment, to fill the senate seat (and potentially displace an unelected interim appointee) as quickly as is feasible.
And, again, all of this is supported by the pro-state-electorate, pro-governor, anti-legislature history of the Seventeenth Amendment.
As we have previously written (and as intimated above), the Seventeenth Amendment took power away from ordinary elected state legislatures, which were viewed as being under the control of unelected party bosses and bedeviled by partisan, racial, geographic, and class gerrymandering. Such issues do not affect governors, who are elected in statewide contests the same way that U.S. senators are. Perhaps the strongest evidence of the Amendment’s pro-governor spirit comes from the text itself, which empowers specifically the executive to pick an interim appointee. It is no coincidence that the actor chosen to pick temporary Senators is elected by the same statewide electorate that elects Senators more generally. Thus, the Amendment not only removed ordinary state legislatures’ power to select senators in general, but it also declined to leave them such power in the special circumstance of a vacancy.
Allowing for gubernatorial discretion also makes practical sense. Given the real-world challenges that the logistics of elections pose—including things like wars, pandemics, or untimely candidate deaths—enabling flexibility beyond rigid statutory guidelines seems reasonable. Based on the Seventeenth Amendment’s history and the nature of the gubernatorial office, governors are well-situated to provide such flexibility.
Can Governor Murphy appoint First Lady Murphy to the Senate?
The wrinkles relating to Menendez’s potential departure from the Senate extend beyond the New Jersey vacancy statute. Media reports indicate that First Lady Tammy Murphy may be interested in succeeding Menendez. But could Governor Phil Murphy constitutionally appoint his wife to fill a Senate vacancy?
Nothing in the Seventeenth Amendment’s text itself prevents this scenario. While not dispositive, there is precedent for appointing spouses to the Senate; in 1972, Louisiana Governor Edwin Edwards appointed state First Lady Elaine Edwards to fill a U.S. Senate vacancy. However, we have previously argued that governors should not be constitutionally permitted to appoint themselves to Senate vacancies (despite the absence of explicit text to the contrary), by analogizing such appointments to unconstitutional self-pardons and invoking the Seventeenth Amendment’s anti-corruption spirit.
We don’t think that appointing a spouse to the Senate triggers quite the same concerns as a self-appointment, whether direct or arranged via an appointment from a lieutenant-governor-turned-governor. (Note that while presidents cannot pardon themselves, it seems they can lawfully pardon their relatives.) In a similar scenario, Alaska Governor Frank Murkowski appointed his daughter, Lisa, to the Senate in 2002, and senators have willingly served with her for over two decades.
However, a constitutionally permitted action is not necessarily ethical or politically wise. Given that a Senate vacancy would arise due to Menendez’s alleged corruption, Murphy’s appointment of his wife would look terrible for Democrats seeking to distance themselves from Menendez’s ignominy. It may even cost Democrats the Senate seat they have held since 1982.
Things might not end well either for Governor Murphy, who, despite being term-limited, may seek a federal position in the future. After all, Governor Murkowski finished third in the Republican primary during his 2006 reelection bid, while eight of the nine governors who manufactured their own appointments to the Senate failed to get reelected.
To sum up: the New Jersey vacancy statute’s provisions for election timing and delegating authority to the governor are constitutional. While Governor Murphy can likely lawfully appoint First Lady Murphy to the Senate, such a move would almost certainly be a political loser—for the Murphys and Democrats more broadly.
