Members of Congress don't always complete their terms due to factors like death, a new job and scandal. When a House seat becomes vacant, the Constitution requires an election to fill it, and every House member has been elected. The 17th amendment established direct election of Senators as well, but left one gap: how to fill an early vacancy. Today, 36 states, including Maryland, let governors fill Senate vacancies by appointment rather than special election — meaning voters get no say in choosing their new representative.
Several states — including Rhode Island, Massachusetts and Connecticut — have been slowly filling this constitutional hole since 2009 by restricting appointment power or implementing special elections. This year, Maryland and at least three other states are advancing legislation to give voters the power to pick their new Senator through special election.
Filling vacancies by election is simply the right thing to do. Senate vacancies happen relatively often; since passage of the 17th amendment in 1913, governors have appointed more than 193 senators — that's an average of more than 11 over the course of every six-year Senate term. These appointments can have partisan consequences; a Washington Post analysis calculated that governors have used their vacancy appointment power to switch the party of a Senate seat on 22 occasions since 1947.
Requiring elections also avoids scandals like the attempt by former Illinois Gov. Rod Blagojevich to literally sell Barack Obama's vacated Senate seat in 2009. Even when governors don't openly abuse their appointment power, it's easy to choose appointees based more on self-interest than the desires of the state's voters. Nine governors have even appointed themselves to Senate positions.
Earlier this month, FairVote (fairvote.org) testified before the Maryland House of Delegates in support of special elections for Senate vacancies. Legislative chambers have passed Senate vacancy laws this year in North Dakota's House, West Virginia's Senate and Montana's Senate. Of the three, only the Montana bill would allow even a temporary interim appointment by the governor.
Most states allow interim appointments (Connecticut, Oklahoma, Oregon, Rhode Island and Wisconsin are the only states where gubernatorial appointments are not allowed), though nine of them call for quick special elections to replace (or affirm) the interim appointee. For example, after the 2013 death of Frank Lautenberg, a New Jersey Democrat, Gov. Chris Christie appointed fellow Republican Jeff Chiesa to fill the seat until a special election months later was won by Democrat Cory Booker.
If the proposed legislation in Maryland were to become law, it would join 14 states that have established special elections for senate vacancies.
We recognize that there are potential challenges in administering special elections, such as clogged fields of candidates and time-consuming and expensive runoffs. When special elections include multiple rounds of election, turnout suffers and election administration becomes strained. But without a primary or runoff, there is a real risk of electing unrepresentative candidates due to a fractured vote among the majority, and such problems have never stopped us from holding vacancy elections for the House.
There are ways to fill vacancies quickly and efficiently, such as a variation of the law being used this spring in a congressional vacancy in Mississippi. All candidates there run together, with a runoff between the top two if no candidate wins a majority. Better still would be use of ranked choice voting, which has tested well in a growing number of cities as upholding majority rule in a single election and creating incentives for winners to reach out to more voters.
Maryland has an opportunity to put voters first by passing House Bill 595 and Senate Bill 529. The Constitution requires that Senators be chosen by the people they represent. That shouldn't change when Senators can't complete their terms. Mandating special elections for vacant Senate seats is the right thing to do in every state.