Abstract
Legislative vacancies are an often-overlooked area in democratic accountability and election administration discourse. While the Seventeenth Amendment and Article I, Section 2 of the Constitution set a general structure for filling federal vacancies, much of the process is left to the states’ discretion. Current practice consists of fragmented policy and a range of practices for filling vacancies in the U.S. House of Representatives and Senate. Data shows a few key areas of concern in existing practice. First, the length of House vacancies has been increasing, leaving constituencies unrepresented for longer periods of time. Second, individuals appointed by governors to fill Senate vacancies on an interim basis enjoy a significant incumbency advantage. These issues are not adequately addressed by the wide variety of existing processes that have been left unexamined for far too long.
This Report recommends reforms to states’ policies for filling federal legislative vacancies. It begins by examining the history and reasons for the current landscape of federal legislative vacancy policy and pulls from this background key principles to guide the Report’s reforms—democratic legitimacy, the exercise of executive power, quality of representation, and apprehension towards political gamesmanship. It then expands on the existing practice in the states, and the data available on these policies. The Report then proposes three sets of reforms to address the issues identified in existing practice, and recommends states adopt these by statute, or when necessary, state constitutional amendments.
States should implement the following reforms: (1) Eliminate special election primaries and instead hold open general elections, ideally using ranked choice voting, to shorten the length of time a seat sits open; (2) Mandate special elections within ninety days of a vacancy, while still allowing special elections to be held concurrent with regularly scheduled general elections when vacancies occur within 150 days of a regularly scheduled election. Additionally, states should authorize the special election process to begin when a resignation is announced, rather than waiting until the seat is empty; (3) Adopt a norm of selecting Senate appointees who will act as caretakers, rather than individuals who seek appointment to gain an advantage in the subsequent election.
These reforms would promote democratic values, especially democratic legitimacy, fair exercise of executive power, quality representation, and apprehension towards political gamesmanship, while still accounting for practical concerns related to administrability of special elections.
Recommended Citation
Nora Donnelly, Alexa Green & Lea Vallone,
Reforms for Filling Vacancies in the U.S. Senate and House of Representatives,
3
Fordham L. Voting Rts. & Democracy F.
(2024).
Available at:
https://ir.lawnet.fordham.edu/vrdf/vol3/iss1/2