A Possible Seventeenth Amendment Conflict Is Looming In Kentucky

Can the Kentucky legislature constrain the Governor's authority to fill a Senate vacancy?

The Seventeenth Amendment provides that each state shall have two senators, elected through popular elections. But what if a vacancy arises through death, resignation, or expulsion? The Seventeenth Amendment provides a two-part process. First, "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." And what happens before that election is held? Second, "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."

It is clear enough that a state legislature is not required to allow a Governor (that is, the "executive") to make a temporary appointment. According to Pew Research, forty-six states have granted such authority. Once the state legislature vests the Governor with that power, can the state legislature constrain the Governor's selection? Again, according to Pew, eleven of those states impose certain constraints on the selection. Specifically, the Governor must select a nominee from the previous senator's political party. This approach makes sense from a pragmatic perspective. If the people elected a Republican/Democrat Senator for a six-year term, the people should be represented by a Republican/Democrat during a temporary vacancy.

Kentucky is one such state. Senate Bill 228 establishes an intricate framework for how a Senate vacancy can be filled:

The Governor shall fill vacancies in the office of United States Senator by appointment and the appointee shall serve until a successor has been elected and qualified under . . .   The appointee shall be selected from a list of three (3) names submitted by the state executive committee of the same political party as the Senator who held the vacant seat to be filled, shall have been continuously registered as a member of that political party since December 31 of the preceding year, and shall be named within twenty-one (21) days from the date of the list submission.

The Republican-controlled legislature passed the bill over the veto of Governor Andy Beshear, a Democrat. The veto message highlighted the federal constitutional objections to the bill:

I am vetoing Senate Bill 228 because it improperly and unconstitutionally restricts the Governor's power to fill vacancies in the United States Senate. The purpose of the Seventeenth Amendment to the United States Constitution was to remove the power to select United States Senators from political party bosses. Senate Bill 228 violates the very purpose of this Amendment by returning that power to political parties in the case of a vacancy. . . . The Seventeenth Amendment does not authorize legislatures to direct how the Governor makes an appointment to fill vacancies, and the legislature may not impose an additional qualification on who the Governor may appoint beyond the qualifications set for a United States Senator set forth in the Constitution.

Beshear also identified a concern under the state constitution:

The bill also is unconstitutional under the Kentucky Constitution. Section 152 of the state constitution provides that the Governor "shall" fill by appointment vacancies in offices for the State at large. No conditions, qualifications, or limits are placed on that appointment power.

When the last was enacted in 2021, Professor Vik Amar highlighted constitutional objections, based on a law review article he published in 2008. (Sandy Levinson wrote on the issue as well.)

This issue, however, may not remain academic. Mitch McConnell, the longtime Senator from Kentucky, has had health issues. The Republican leader's term will conclude in January 2027. And the Democratic Governor's term will conclude in December 2023. If a vacancy arises over the next five months, or longer if Beshear is re-elected, Senate Bill 228 would be put to the test.

Already, a prominent Democrat attorney in Kentucky said that Beshear may not follow the law, consistent with his veto message. There are two possible paths. First, Beshear could simply ignore the list, and pick whomever he wants. Second, Beshear could go on offense and seek some sort of declaration that the statute is unconstitutional.

"Beshear either says, 'hey, Republican Party, thank you for your list, but I'm appointing whoever I want' and then that immediately gets challenged in court, or you could see Beshear taking the route of filing a lawsuit," Abate said. "I mean, he's got the guts to defy it," Abate added.

This decision can have national implications, as McConnell is the leader of the Republican caucus. (The Washington Times offered some commentary.)

Here, I will not opine on the Seventeenth Amendment issue. (I will do so later). Rather, I want to opine on the procedural aspects of the process.

First, Beshear can simply ignore the list, and appoint whomever he wants. We could expect prompt litigation from members of the state executive committee. But what remedy would the committee seek? Beshear would have already fulfilled his authority under the Seventeenth Amendment and selected a temporary Senator. Beshear could make that appointment quietly, as soon as a vacancy arises. Before any litigation is filed, the Senator can appear at the Capitol and present his credentials. At that point, I am not certain that a judge, whether federal or state, could undo the appointment. Whether the Senator is recognized would seem to be a political question under Baker v. Carr. The United States Senate could decline to recognize the Senator, perhaps due to the Governor's failure to comply with state law. But the Senators could determine, like Governor Beshear, that the statute itself is unconstitutional. As a matter of real politic, I suspect every Democratic Senator would gladly welcome a Democratic replacement for McConnell.

For the second option, the Governor could sue the executive committee, and argue that the constraint violates the federal and state constitutions. This suit can be brought in federal court or state court. In federal court, at least, such a suit would seem to be not-yet-ripe prior to a vacancy arising. The Governor would probably have to wait until the executive committee provides a list of names. The rules may be different in state court. If the Governor sues in state court, and there is only a claim under the state constitution, I don't think the case could be removed to federal court under the Mottley rule.

There is a third option. Members of the executive committee can go on offense, and seek a declaration that the Governor is bound by the state law before any vacancy arises. Such a suit would not-yet-be-ripe in federal court, but it could work in state court. Again, I don't profess to be an expert on Kentucky procedure. The upshot of this latter approach would be to avoid a stealth selection, which cannot be undone. The downside, of course, is the morbidity of the topic. Senator McConnell is still serving, and it is unsettling to even discuss a potential future vacancy. I know all too well that people were unhappy with a post I wrote about Chief Justice Roberts being unable to preside at President Trump's impeachment. But it is far better to talk about a succession crisis before it happens, not during the process.

I hope this issue remains an academic curiosity.