... Its first paragraph replaced the indirect election of senators by state legislatures with “direct” popular election by the voters. The second paragraph, which you may have skipped in school, deals with vacancies. It states that when seats open up unexpectedly, governors “shall issue writs of elections to fill such vacancies.” The plain enough meaning is that the governor will issue an order for a special election. But for decades now governors have opted not to issue writs directing new or special elections. Why are they ignoring the Constitution? To increase their own power, of course.
The pretext being used is a legal “proviso” in the amendment that comes later in the second paragraph. It states: “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.”
A proviso, one learns in law school, is to be interpreted strictly, and certainly should not cancel out the clause it modifies. In this case, that clause states in plain English that the governor must issue a writ of election. Rather than excusing the immediate issuance of a writ, the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines. For example, if the legislature decided that it would take 120 days to hold a special election, it would seem perfectly proper for the governor to send a temporary appointee to vote on a pending budget bill or major treaty.
Yet the current practice in virtually every state flips the proviso to override the main clause. Governors don’t issue a writ or start the machinery for a special election as the amendment requires, but instead fill the post for up to two years, until the next general election. This frustrates the whole democratic thrust of the amendment.
While this has been happening for decades, the corrupt nature of the practice has finally become too obvious to ignore in Illinois, now that the United States attorney has a court order to have the governor bugged. Yes, the F.B.I. complaint against Gov. Rod Blagojevich paints him as especially corrupt. But the fact is that a certain amount of political horse-trading is inherent if officials, rather than voters, fill Congressional vacancies.
This is why the writers of the 17th Amendment required special elections. It is also why governors and legislators have always been eager to stop these elections. They resented having to give up the old system, in which they picked the senators. As Governor Blagojevich allegedly said on tape of his opportunity to fill Barack Obama’s seat, this “thing” is “golden.”
Defenders of the current system insist that the case of Valenti v. Rockefeller decided once and for all that governors can lawfully skip special elections. In the case, the plaintiffs had sought to require Gov. Nelson Rockefeller of New York to hold a vote in November 1968 (as part of that year’s general election) to fill the Senate vacancy created by the murder of Robert F. Kennedy. The governor instead appointed Charles Goodell to fill the term until the next regular election in 1970, on the ground that there could not be the necessary primary election before the November 1968 vote.
The suit was taken up by a federal three-judge panel; two judges held that it was a “reasonable exercise of discretion” for a New York state law to give the governor such power. The third, the widely respected Marvin Frankel, argued that the second clause of the 17th Amendment required special elections as soon as possible. But the matter hardly rests there, as the Supreme Court eventually ducked the question. In 1969 it issued a “per curiam” summary affirmance of the panel’s decision — meaning that while it didn’t overturn the judgment, it issued no opinion in favor of it. Such an affirmance is typically not treated as a strong precedent.
A Job Too Big for One Man to Fill -- Electing US Senators
Originally Posted by Simon Cashmere
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