Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the Senate Constitutional under the Seventeenth Amendment?

Abstract

Last summer, when Republican U.S. Senator Craig Thomas died, a Wyoming statute obligated the state Governor, a Democrat, to pick a replacement (to serve until an election was held) from among three names submitted by state Republican party leadership. At least two other states have statutes that similarly obligate governors to temporarily fill Senate vacancies using short lists compiled by state party officials. This Article argues, based on the text, structure and history of the Seventeenth Amendment and related provisions and concerns, that such statutes violate the Constitution.

Keywords: Seventeenth Amendment, Senate election, Senate vacancy, Gubernatorial Appointment