Can a Marylander be the Senator from California?

Why Article I's residence requirement applies to appointees.

Yesterday I noted the concern that Laphonza Butler—sworn in earlier today as a senator from California—remains under the Constitution a citizen of Maryland, not an "inhabitant" of California as Article I requires. (There are also arguments that she was not yet a California "elector" when appointed, as state law may require.) Because the U.S. Senate is "the Judge of the Elections, Returns and Qualifications of its own Members" under Art. I, § 5, cl. 1, it's also the only body that could declare Butler ineligible to serve.

So must it? Seth Tillman, Josh Blackman, and Mike Ramsey have argued that it doesn't really matter—that it's perfectly fine for this Marylander to represent California in the Senate. The Seventeenth Amendment provides for two routes to a Senate seat, being "elected by the people" or receiving a "temporary appointment[]" from the state executive. Because Article I's residence requirement applies to a senator "when elected," they argue that it's wholly inapplicable to appointments—and that Gov. Newsom could appoint someone from Alaska or New York if he wants to.

I'd discussed this argument briefly in my prior post, but it deserves response at greater length, especially as it seems to have persuaded some eminent folks. Even so, just as there's a danger in failing to read constitutional text carefully, there's also a danger of unconsciously importing a degree of precision that might not have been perceived at the time. The crucial "when elected" language comes, not from the Seventeenth Amendment (which speaks of senators "elected by the people"), but from the original Constitution. That text used terms such as "elected," "appointed," and "chosen" in occasionally overlapping ways—sometimes distinct, sometimes coextensive. Most importantly, that's how such words were actually read, whether in the Philadelphia Convention, in the Federalist, or in the early-nineteenth-century Senate, which in 1809 actually decided a contest on this issue in favor of requiring residence. By contrast, drawing new lines between election and appointment would make a hash of a variety of other constitutional provisions.

 

Text. Here's what Article I says:

Section. 2. ^[1]The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

^[2]No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

* * *

Section. 3. ^[1]The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

^[2]* * * if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

^[3]No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

As I argued yesterday, "when elected" here uses the broad meaning of election, akin to "when chosen." (Think of a jury instruction given "at the defendant's election," or of "a power of election" or "power of appointment" in private law.) This portion of Article I doesn't strictly differentiate between "elected" and "chosen." Representatives and senators are "chosen," even though the former are picked in elections by the people at large and the latter are picked when a state legislature adopts a bill or resolution. Ramsey argues that a "selection by the state legislature is an election (by a vote of the members of the legislature)." But having a majority of members vote in favor of a resolution naming a single senator—either asynchronously, by two separate houses that will have to agree, or in a unicameral body, like Pennsylvania's Founding-era General Assembly—doesn't look anything like being "elected" in a multi-candidate election. The "when elected" requirement for senators isn't keyed to when the votes are tallied in either house, but when the bill or resolution actually takes effect: that is, whenever an official choice has been made.

In fact, while it often differentiates appointed officers from elected legislators, the Constitution sometimes describes precisely this kind of legislative selection as a form of appointment. For example, presidential electors might be picked by popular vote (as they usually are today), or they might be listed on a slate chosen by a state legislature, just as senators were. But Article II, § 1, cl. 2 includes a legislature's naming a slate of electors as a process of appointment:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress * * * .

And the Constitution elsewhere envisions "Appointment[s]" made by a multimember body, as under Article II, § 2, cl. 2:

* * * [T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, * * * in the Courts of Law * * * .

So it's far from clear that "when elected" in Article I is in contradistinction to senators' being chosen via "temporary Appointments"—or that this language means anything over and above when selected or when chosen. In fact, that's roughly how Noah Webster defined 'elect' to mean 'select' in 1828:

1. Properly, to pick out; to select from among two or more, that which is preferred. Hence,

2. To select or take for an office or employment; to choose from among a number; to select or manifest preference by vote or designation; as, to elect a representative by ballot or viva voce; to elect a president or governor.

3. In theology, to designate, choose or select as an object of mercy or favor.

4. To choose; to prefer; to determine in favor of.

 

Drafting and interpretive history. Far more important than these generic dictionary definitions is how people actually did read the language in question. Consider the drafting history. As of August 6, 1787, the Committee of Detail's draft concerning the Senate read as follows (2 Farrand at 177, 179):

Sect. 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote.

* * *

Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen.

This language doesn't say anything about "appointment"; vacancies are to be "supplied by the Executive." But there's little reason to suspect that these Executive-supplied senators were any less subject to the residence requirements—and especially the requirements of citizenship, which applied to a senator based on the time of "his election." To read "election" as excluding replacement senators would exempt them from any need to be citizens at all! Yet this language was accepted by a number of delegates who simultaneously expressed grave concern about "the danger of admitting strangers into our public Councils" (2 Farrand at 235), and who that very day raised the citizenship requirement from four years to nine (id. at 228, 239). (Tillman suggests that the Framers might have wanted to allow for the easy selection of replacement senators who were already near the seat of government, even if they hailed from elsewhere. But I couldn't find any indications of this concern in the debates.)

Three days later, this language was expanded to "Vacancies happening by refusals to accept, resignations or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies may happen, or by the Executive thereof until the next meeting of the Legislature" (id. at 227, 232). A legislature-supplied replacement and an executive-supplied replacement were treated as being on an equal footing—yet if Ramsey is right, the former would have undergone an election while the latter has not. This provision was sent to the Committee of Style (id. at 566), which reframed the qualifications provisions for the House and Senate and produced the "temporary appointments" / "when elected" language (id. at 591). But there's little reason to think that by doing so it lifted any residence requirement from replacement senators, especially if "the time of his election" would already have applied to them under the old language.

Nor do early interpreters of the Constitution seem to have distinguished "Appointments" from being "elected" in this way. For example, Federalist 62 repeatedly discusses "the appointment of senators by the State legislatures"; it describes wholly interchangeably "the term for which [these senators] are to be elected" and "the duration of their appointment." (See Cooke ed. at 415–16, 418.) Maybe some Founders used election and appointment as fundamentally disjoint concepts, such that one term could never be used in place of the other—but, apparently, not James Madison.

Nor did the Senate itself. The earliest construction I've been able to find (suggested by Derek Muller) goes squarely the other way. In 1809, Stanley Griswold was appointed by the governor of Ohio to fill a Senate vacancy. But he had lived in the state for less than a year. Before the Fourteenth Amendment, state citizenship wasn't immediately triggered by domicile, and his status might have depended on a longer residence period under state law. A Senate committee investigated the issue, which could only have been an issue if appointees were, in fact, required to be "inhabitant[s]" of the states they represented. The committee concluded that Ohio's "term of residence or other qualifications necessary to entitle a person to become an inhabitant of the said State are not, so far as the committee have been able to discover, defined either by the constitution or laws of said State." Thus, "the executive who made the appointment having certified that said Stanley Griswold is a citizen of said State," the committee inferred that state law had been satisfied and deemed Griswold eligible to serve. (See Compilation of Sen. Election Cases from 1789 to 1913, S. Doc. No. 1036, 62d Cong., 3d Sess., 1918.) In other words, the Senate as early as 1809 acted on the understanding that "when elected" didn't exclude appointees.

 

Context. The other problem with the no-appointees reading is that it makes a hash of other provisions of the Constitution. Consider Article I, § 5, cl. 1:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * * .

If two people had shown up in D.C. today, each named Laphonza Butler and claiming to be senators from California, would the Senate really have been unable to judge which one (if either) Gov. Newsom had selected? After all, both might have been equally qualified for the Senate, of the appropriate age and citizenship and so on, and neither would have had any "Returns" to examine. Reading "Elections" here to include "temporary Appointments" is the only way to avoid absurdity.

Or consider Art. I, § 6, cl. 2:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . .

On the elected-only reading, it'd be perfectly legal for President Biden to buy Butler off with a plum appointment, because there'd be no "Time for which [s]he was elected."

Or consider the analogous language concerning presidential succession, in Art. II, § 1, cl. 6–7:

^[6]In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

^[7]The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Set the Twenty-Fifth Amendment aside and assume that this language were still in effect. If some disaster caused the Secretary of Agriculture to act as President, he wouldn't have been "elected" to the office within the meaning of Article II, because he could only act until a President is elected. But on the Tillman-Blackman-Ramsey reading, that also means that the term during which he acts couldn't possibly be "the Period for which he shall have been elected," meaning that Congress would be free to zero out his salary for his temerity in vetoing any bills, or that the states would be free to pay him off for steering patronage their way.

The point isn't that such readings are unwise, that they're bad policy, etc. The point is that they appear to be mistaken—that they fail to track how legal texts regularly function. The meaning of "temporary Appointments" and "when elected" depends on whichever degree of flexibility the terms had in contemporary language, not any idealized precision that might seem natural to us as modern readers. Article II's emoluments language is phrased in terms of elections because that's how Presidents standardly come to the office; but the phrasing doesn't render the provision inapplicable to someone else who, under another provision of equal authority, legally steps into the President's shoes. For the same reasons, the Senate residence requirement's phrasing in terms of elections doesn't rule out its lawful application to an appointee who, under another provision of equal authority, legally steps into the shoes of a departed senator.

To my mind, the Senate got it right in 1809; the residence requirement applies to appointees; the "when elected" language uses the broad rather than narrow meaning of election; and any argument to the contrary has a heavy burden to bear. And Butler is, alas, ineligible to serve.

Comments

[JasonT20]

That text used terms such as "elected," "appointed," and "chosen" in occasionally overlapping ways—sometimes distinct, sometimes coextensive.

Great. If the Constitution does sometimes have distinct meanings for "elected," "appointed," and "chosen," then how can we tell whether these words have the same meaning in this context. I would think that the context of the 17th Amendment is how you would tell, not how it was used more than a century prior to that.

The 17th Amendment very clearly refers to the people electing senators. Not the executive of the state, the people. It then says that the legislature of a state may empower the executive to make "temporary appointments" when a vacancy occurs until the people fill the vacancy "by election."

This doesn't look like a close question to me. The people elect their senators, the governor appoints temporary replacements until the people can elect one. The context of the 17th Amendment is more than clear enough that looking outside of it is looking for an excuse to cause trouble. It is not a reason to doubt the qualifications of Newsom's choice.

[Area Man]

I'm not necessarily disagreeing with you. But does that mean a governor, under the 17th Amendment, can appoint a 14-year-old foreigner to the Senate? Doesn't seem right. Doesn't mean it isn't, but I have a hard time believing it is.

[JasonT20]

I don't think it is useful to imagine scenarios so absurd that it would never happen. There is no need to try and figure out whether a particular interpretation of the Constitution's language would allow something like that, because it would never get to that point.

This is one of the things about some legal scholarship that gets under my skin. It is just too much like debating how many angels can dance on the head of a pin, rather than dealing with real issues.

[Jazzizhep]

The exaggeration to prove a point is just that. And you argued the exaggeration instead of the point he was making. Change his 14 year old example to 29, or even 25. Now change citizenship to 5 years instead of nine. How about not even being a citizen (not absurd in the context of identity politics)? Are seriously suggesting that those qualifications don’t count because the person was chosen by the executive instead of chosen by the electorate?

I don’t care who Pat Riley, err Gavin, chooses. What’s the point of even putting restrictions at all if the executive can just ignore them?

[Zarniwoop]

There's an argument that the residency requirement only applies when a Senatuh is "elected" as opposed to "appointed". I don't have much of a dog in that fight.

But there is no good argument that the age and citizenship requirements can be ignored, because the "when elected" clause does not apply to them

The entire hypo ignores the actual Constitutional text. Stop hyperventilating, everyone.

[Krychek_2]

I would just point out that after Donald Trump there is probably no such thing as a scenario that is too ridiculous to happen.

[Zarniwoop]

No. The age requirement and citizenship requirement are not subject to the "when elected" clause, so the same logic does not apply:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

U.S. Constitution, Article I, section 3, clause 3

[Area Man]

That’s fair enough, and maybe that answers it. But JasonT20’s point was that the *17th Amendment* places no limits on the appointment. (Assuming, of course, I understood his argument correctly. Apologies if I didn’t.)

[Zarniwoop]

I'd point out that the 22nd Amd modifies rules for presidential election (only 2 terms, basically). But it is silent on the other requirements of Article II, Section 1, Clause 5:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

and no one that I know of thinks that the existence/silence of the 22nd Amd means a 33yo non-natural born citizen who hasn't been a US resident for 14 year is still eligible for the Presidency.

[JasonT20]

I should have been more clear. I was really only contesting Prof. Sach’s argument that looking at unrealistic scenarios that might slip through loopholes is somehow essential to understanding how to apply the text in a real, present situation. The fact of the matter is that Gov. Newsom is appointing someone where the only possible question as to her qualification is the timing of when she could be considered an inhabitant of California.

His concerns over other provisions just shows you the problem with trying to parse the language of laws and the Constitution so finely. The Constitution is not nearly detailed enough to cover every permutation of what can occur over the course of centuries. We have a Constitution that was written 223 years ago. The people involved in writing it, arguing for and against its ratification, voting on ratification, serving in the government it outlined, and the people that voted for them did not always agree on what it meant and how the government should work, and it had 27 amendments made to it over that time period. Why should we tie ourselves into knots trying to read the minds of those people and the other people long dead that ratified all but the last few of those amendments?

Because the U.S. Senate is “the Judge of the Elections, Returns and Qualifications of its own Members” under Art. I, § 5, cl. 1, it’s also the only body that could declare Butler ineligible to serve.

So must it?

This question is not going to be answered by law professors. It is going to be answered when the current senators accept or reject Newsom’s appointment, just like he said. No one in a legislature “must” vote in any particular way on anything. He acknowledges that only they can disqualify her, so to even use the word “must” is getting the fundamental reality of the issue wrong. No arguments from any number of legal scholars of any reputation nor can any court force the Senate to disqualify her. They will vote the way they want to.

The one thing I never seem to see from originalists is evidence from the Founding era that they expected future generations of U.S. citizens (that hadn’t been born yet) to rely on the selected writings of those that were prominent enough to be preserved to figure out what the Constitution means and how to apply it in their time. It looks far more likely to me that most of the Founders expected that people would, in fact, figure a lot of things out as they went along and not go through the arduous task of amending the Constitution to clear up every ambiguity.

[Joe_dallas]

It would seem that the same qualification requirement of article 1 section clause 3 would apply was so self evident (via the phrase "..from the state " in clause 1, that the drafters thought there was no need to repeat the qualification requirement for an between election appointment.

That being said, I think the answer is unclear and/unknown and will remain unclear.

[David Nieporent]

But does that mean a governor, under the 17th Amendment, can appoint a 14-year-old foreigner to the Senate?

No, it does not mean that. Article 1 Section 3 says that "No Person shall be a Senator who shall not have attained to the Age of thirty Years." The 17th amendment does not abrogate that. Article 1, Section 3 provides three criteria:

1. 30 years old.
2. Citizen for 9 years.
3. Inhabitant of the state when elected.

The first two criteria, unlike the third, do not say anything about elected vs. chosen vs. appointed. They set criteria for being a senator.

[mlhouse]

1. I would argue that the Framers viewed the election of Senators and appointments of open Senate seats to be a distinctly different process with the appointment having much fewer restrictions than an elected Senator.

The reason for this is that in late 18th and early 19th century United States the travel time to Washington DC was significant. An open US Senate seat could have sat unfilled for months until an replacement Senator who was a resident of the state could reach the national capital.

To find someone available, qualified, AND a citizen of the state might have been a difficult proposition for some of the outlying states of the Union in an era of limited transportation. So, I think the Framers made it available for the Governor of New Hampshire to appoint someone like Daniel Webster as a temporary Senator.

2. I think that the Framers also understood that the political costs of a poor appointment to the US Senate by a state's chief executive would have potentially been significant so any appointment "loop hole" would have been carefully examined. But in the Framer's day there was much more dissension in their parties than there is in modern day California.

3. IN the end, the case is moot because it does not impact the homogeneous socialist politics in the state. California will consider itself honored to be represented by an abortion radical.

[David Welker]

mlhouse:

Overall, in Article 1, section 3, clause 1 the Constitution uses the word "chosen" to refer to the selection process for Senators. And in Article 1, section 3, clause 3, it refers to Senators who are "elected." At the time, the only way to be "elected" to the Senate was to be "chosen" by the legislature. Thus, we see that the word "elected" means approximately the same thing as "chosen" here.

Well, when a Governor appoints a Senator, he or she also "chooses" a Senator.

Also, the phrase "when elected" doesn't seem to be about elected versus appointed, but instead about the process by which one determines when a potential candidate must be an inhabitant. This is in the context in which traveling from colony to colony was common: "No Person shall be a Senator... who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."

The word "when elected" is just a very economical and efficient way of specifying the timing of inhabitance. In other words, that previously having been an inhabitant of a state does not qualify one to be a Senator and that one does not have to be an inhabitant of the state after being "elected" either.

The problem with the Blackman view and your view is that you are trying to read far too much in these two words, which are intended to specify timing rather than to make a grand distinction between election versus appointment.

[NOVA Lawyer]

It isn't any less economical to say:

“No Person shall be a Senator… who shall not, when chosen, be an Inhabitant of that State for which he shall be chosen.”

They clearly understood they could use "chosen" which would encompass elected (clearly, as that's how it is actually used) as well as appointed. If we're going to parse word choice that closely, then, rather than speculate that they were trying to save words and just didn't realize they could use a word that encompassed all ways of becoming a Senator, it's better to assume that, given there was an alternative word choice that would have broadened the scope of this requirement but they didn't use it, they meant for it to be limited pursuant to the explicit language.

If we're going to be textualists, then let's be textualists. You're advocating we become mindreaders. Nah.

[David Welker]

I agree that the Constitution could be better drafted. That is shown by the fact that the Electoral College failed as an institution because it was underspecified and the Constitution had to be immediately amended after it was passed to fix unintended conflict between the President and Vice President.

The Constitution was written over a four month period in a hot summer in Philadelphia in a building that lacked air conditioning was was very uncomfortable. At the end of the four months, people were very tired and really wanted to go home.

Thus, I am nearly always willing to concede that the Constitution could have better drafted.

I am only a textualist insofar as there is not any better alternative. If the Constitution is going to serve as a bulwark to protect rights and establish a framework for rights, we don’t have any choice but to take text seriously. But I am a pragmatic textualist; I am not pretending that this text was written by God. It was written by imperfect humans who were hot and tired. And they definitely did not express themselves with perfectly. And they certainly did not have a crystal ball enabling them to see all of the situations in which the principles they were enunciating would be applied.

In this case, we know what they actually wrote. In the very same section of the Constitution, they referred to Senators “chosen” by state legislatures as “elected.” This is evidence that in THIS context (not all other contexts) the words elected and chosen are not sharply distinguished. Later, in Article II, it talks about electors being “appointed” by state legislatures, even though they would be “chosen” in the same manner as Senators, namely after a vote.

It is evident from this that, in the context of Section 3, there isn’t actually such a sharp distinction between “elected,” “chosen,” and “appointed.” I am not relying on counterfactuals here, but what was actually written. I am certainly willing to concede that they could have written the Constitution differently and achieved the same result.

But as John Marshall said in McCulloch v. Maryland, it is a Constitution we are interpreting. Unlike a statute (which, by the way, all too often are ALSO drafted in a less than optimal manner), the Constitution was purposefully kept short so that ordinary people could read it and debate it. It relies on context rather than definitions. And add to that, it was drafted in an uncomfortable environment and the drafters wanted to go home and get on with their lives after four months in an uncomfortable building in Philadelphia that included plenty of exhausting contentious debate.

Anyway, bottom-line is that the idea that there js a sharp distinction between elected versus appointed in Article I section 3 is undermined by the text that was actually written.

I am not against counterfactual reasoning altogether (couldn’t they have written it this way… if they really wanted to say that, wouldn’t they have written this), but I think that counterfactual reasoning must yield when you have strong evidence that undermines such counterfactual arguments.

That the Constitution is not written in a perfect manner is obvious to me, for that reason, couldn’t they have written X rather than Y falls flat. They actually used the words “elected” to refer to Senators that were “chosen” and then they refer to electors as being “appointed” despite being chosen in the same manner as “elected” Senators later.

It isn’t that strange. Election is one way a person can be appointed. Election involves choosing.

[David Welker]

Jason:

We are talking about how the word "elected" should be interpreted in Article 1, section 3, clause 3 and more broadly in the Constitution when adopted. Your argument only makes sense if you think the 17th Amendment attempted to specifically change the way elected was used in the Constitution in Article 1, section 3, clause 3 and more broadly in the Constitution.

But nothing in the text of 17th Amendment suggests it is trying to make such a fundamental change. Instead, all the 17th Amendment appears to be doing is changing Article 1, section 3, clause 1.

[Joe_dallas]

Thought Newsome was tacking to the center for his bonafide centerist credentials ahead of his presidential run annoucement. Guess he could pass up the most perfect extreme leftist for an important senate position.

[Sarcastr0]

You have no idea who this woman is. 'most perfect extreme leftist' says a lot about how little you deal with facts, not a lot about her.

Leftist? Sure. But it's obvious the story is more important to you than anything else.

[Joe_dallas]

Dude - She is president of emily's list
You either have a serious detachment from reality or emily's list is progressive enough for you

[Bob from Ohio]

And a former state director of SEIU

[Rev. Arthur L. Kirkland]

She sounds like an accomplished woman, of the type not often encountered among the can't-keep-up residents still mired in Lower Dumbass, Ohio after generations of bright flight.

[Frank Drackman]

Says the disgraced former Foo-bawl coach at a mediocre program in a mediocre conference (should be called the "Dumbass Conference" as they can't even get the number of teams right) Speaking of being mired in asses, why are you still contributing to Global Warning at
https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx??
Senator S-s-s-s-s-s-s-tuttering John Fetterman's finally able to buckle his Velcro Crocs, what's holding up your Commutation "Package"??

Frank

[Joe_dallas]

typo not progressive enough for you

[jb]

The fact you acknowledge that Emily's List might not be "extreme" enough for someone is a pretty good sign she's not the "perfect extreme leftist".

More generally, if someone like the head of the Cato Institute was appointed as a Senator, I certainly wouldn't think that person was the most extreme rightist. Seems like "pro choice" and "pro woman" is sufficient to qualify as an extremist in your book.

[Joe_dallas]

Emily's list endorses candidates that are vastly more progressive than "pro-choice"

Emily's list endorses candidates that endorse partial birth abortion
Emily's list endorses candidates that endorse abortion up until delivery.

That is pro infanticide

[JasonT20]

Emily’s list endorses candidates that endorse abortion up until delivery.

citation needed

The last time I looked into a claim like this, the actual law being endorsed was for it to not be a criminal matter when a doctor makes an evidence-based judgement call about whether an abortion is necessary to protect the pregnant woman.

We are seeing what happens when it can be a criminal matter, as doctors in states that have instituted bans have, in at least some cases refused to treat women undergoing miscarriages using standard methods of care out of fear that a zealous anti-abortion prosecutor might come after them.

[Joe_dallas]

asonT20 14 mins ago
Flag Comment Mute User
Emily’s list endorses candidates that endorse abortion up until delivery.

citation needed"

go to emily's list , then look at the abortion stance for the candidates they are supporting

[JasonT20]

Rep. Spanberger believes that protecting women’s access to reproductive healthcare is a social and economic necessity. In the wake of the Dobbs decision, which undermined decades of established precedent and settled case law, Rep. Spanberger has focused on taking steps against policies that undermine the right to privacy and a woman’s right to choose. She has voted to codify Roe v. Wade into law, protect contraception access, and defend the right of Americans to travel across state lines to seek lawful abortions.

I did what you asked and picked the first House candidate on their page and found a statement on her website about abortion, which I quote above. I don't see any reference to post-viability abortion at all, so that 5 minutes is as much as I'll spend to check your claim. It's your turn to provide a link or quote to back it up.

[Joe_dallas]

jason t20 "The last time I looked into a claim like this, the actual law being endorsed was for it to not be a criminal matter when a doctor makes an evidence-based judgement call about whether an abortion is necessary to protect the pregnant woman."

That is not what the candidates are stating with regard to their policy positions on abortion

[shawn_dude]

It is not "pro infanticide." For starters, you haven't even proved that it represents "infanticide." And yes, most pro-choice advocates make room for late abortions in very narrow circumstances. The right wing whackos like to pretend the pro-choice crowd will abort a pregnancy at any time for any reason. That doesn't make it fact, just propaganda so dumb it takes a special kind of stupid to buy into it. And those folks, the ones with a special kind of stupid, are really using this to characterize their moderate and liberal neighbors as baby-killing monsters and thus make it easier to justify all sorts of otherwise uncivil actions against them.

[Mr. Bumble]

This could get interesting if she decides she likes being a Senator and decides to run for the seat next year (she already has a home in nearby Maryland).
Porter, Lee and Schiit must be loving this.

[Mr. Bumble]

Thread hijack:
McCarthy voted out as speaker.

[Frank Drackman]

Hijacking it back:
Trevor Bauer exonerated.
Where does he go to get 2 1/2 seasons in his prime performing
years back?
Frank

[Jazzizhep]

I would like to say he could at least get monetary compensation from MLB. But the MLBPA caved to #metoo pressure and agreed to punishment on mere accusations.

[Life of Brian]

Oopsie. So much for Magister's latest heroine. Maybe we're nearing the end of the firehose of money trained on Ukraine after all!

[Magister]

An example, not a hero; I think McCarthy is as much a loser as Life of Brian. McCarthy's ouster cements his reputation as another Liz Cheney, wouldn't you think?

[JasonT20]

McCarthy’s ouster cements his reputation as another Liz Cheney, wouldn’t you think?

Uh, how does that fit? Liz Cheney was voted out after defying Trump and MAGA Republicans. McCarthy handed Trump his spine over and over again. Not as often or as completely as Lindsey Graham, maybe, but he still bowed in the correct direction to satisfy his ambition as soon as it was clear that he'd be sticking his neck out to do otherwise.

[Brett Bellmore]

She defied the House leadership, too; After the decision to boycott the Jan. 6th committee was made by the leadership, she accepted an appointment by the Democrats as a "minority member". That wasn't just an affront to the conservatives, it was an affront to the leadership, too.

You can sometimes get away with offending your constituents, if you keep the leadership happy with you. You can sometimes get away with offending the leadership, if you keep your constituents happy.

But pissing them both off at the same time is generally fatal.

[JasonT20]

She defied the House leadership, too; After the decision to boycott the Jan. 6th committee was made by the leadership, she accepted an appointment by the Democrats as a “minority member”. That wasn’t just an affront to the conservatives, it was an affront to the leadership, too.

Correct. Leadership that was bowing to Trump and the MAGA caucus by wanting to put people on the committee that the committee would have wanted to question. The GOP leadership (e.g. McCarthy) was bowing to Trump and the MAGA faction in doing everything they could to sabotage any effort to investigate Jan. 6 by the House. So, like I said, Cheney was defying Trump and MAGA Republicans (both voters and members of Congress).

Besides, how does your observation about defying leadership apply to McCarthy, who was the top House leader?

Liz Cheney is brought up by those that want to say, "This is what you get for defying Trump and MAGA." That is not a factor in McCarthy's ouster at all. McCarthy was ousted because he wouldn't do every single thing that a tiny ultra-obstructionist cohort in the House wanted him to do, so they used the fact that Democrats would be happy to axe McCarthy as well to get their way. (8 Republicans essentially voted out their party's leader in the House from his leadership role.)

[Life of Brian]

McCarthy was ousted because he wouldn’t do every single thing that a tiny ultra-obstructionist cohort in the House wanted him to do,

I think worded a bit more neutrally, he wouldn't do what he promised to do in order to get their votes in the first place. I can't be the only one that still remembers how many votes he went through and the promises he made in order to break that logjam.

[JasonT20]

Fair enough. But that was the thing. The vote that ousted him was something that only those few radicals insisted on including the rules. It couldn't have happened that way to earlier speakers. These handful of "performance artists" use the narrowness of the GOP majority to hold the whole GOP caucus hostage.

[Life of Brian]

The vote that ousted him was something that only those few radicals insisted on including the rules. It couldn’t have happened that way to earlier speakers.

Understood, but again that was part of the price of admission, and was included precisely so that there could be recourse if McCarthy made pie-in-the-sky promises just to get their votes and then did whatever he wanted afterward. You may not agree with them choosing to pull that lever, but given the state of play it's a bit hard to imagine why they wouldn't have. To set clear boundaries and then just do nothing when they're repeatedly and brazenly flouted is a recipe for failure in both parenting and politics.

[JasonT20]

The problem is that it isn't a lever, it is a self-destruct button. The kind of politics that these guys are playing is to try and run things themselves using the narrowness of their majority as the leverage to get that power. This is the weakness with how leadership in Congress is determined.

The Speaker needs a majority of the whole House to be elected as Speaker, and no one of the opposing party is going to vote for him, so just a few Republicans had the leverage to constrain the leader in ways that they never could have just within their own caucus.

*I'm not sure, but I think that Majority/Minority Leader in both the House and Senate are elected only using votes from that party's members. Thus, Schumer doesn't need Sinema and Manchin to maintain his position as Majority Leader. They only have leverage for their votes on individual bills.

What those few Republicans did, in other words, was use the way that the Speaker was elected to poison any efforts to pass legislation in a bi-partisan way by threatening to remove him as Speaker on just their say if he did something they don't like. Frankly, it is stupid to have rules in a legislative chamber that allow 8 malcontents in your party of 218 Representatives can fuck things up like that. Really, if the other 210 Republican House members had any spines, they'd punish those 8 for doing this.

But of course they won't, because those 8 always get what they want: the attention for "fighting the establishment" that plays well to the MAGA base. And those Republicans that don't want to play that game still have to deal with those voters in their own primaries.

[JasonT20]

This is another example of the many ways in which the structure of government in the U.S. enables vocal and highly motivated minority factions to win even if a majority of voters don't want them to.

[Life of Brian]

The kind of politics that these guys are playing is to try and run things themselves using the narrowness of their majority as the leverage to get that power.

This literally has been business as usual in a closely divided house of Congress for as long as I can remember, where the individuals on the bubble threaten to join the opposition party unless they get concessions. More on this below.

The Speaker needs a majority of the whole House to be elected as Speaker, and no one of the opposing party is going to vote for him

That's definitely true for the election itself. But McCarthy's version of the story last night was that Pelosi had promised him Dems (as the adult party of regular order, yada yada) wouldn't vote to oust him in a situation like this. So far as far as I know there's only his word that happened, but it certainly lines up well with his cavalier attitude toward the safety of his position. The only reason the splinter faction was able to do what they did was because the Dems broke that promise and voted as a party against him.

I’m not sure, but I think that Majority/Minority Leader in both the House and Senate are elected only using votes from that party’s members.

That certainly makes sense to me, given that those positions by definition are within a single party. The speakership is over the entire body. Though realistically it generally goes to the party with the majority, that's not inevitable. Heck, that's how McCarthy inched back a bit of leverage during his election -- pulling out the threat that if people didn't stop screwing around and vote him in, that the Ds plus a few moderate Rs would vote in a D as speaker.

What those few Republicans did, in other words, was use the way that the Speaker was elected to poison any efforts to pass legislation in a bi-partisan way by threatening to remove him as Speaker on just their say if he did something they don’t like.

This was your original premise, and I continue to think it's much more useful to evaluate this as promises made/promises broken than some sort of hijacking exercise that arose out of thin air. Without making those promises, he literally would not have been elected in the first place. And without keeping those promises, he had no reasonable expectation of staying on.

[JasonT20]

This literally has been business as usual in a closely divided house of Congress for as long as I can remember, where the individuals on the bubble threaten to join the opposition party unless they get concessions.

That happens when those individuals are centrist enough to make that threat work. This is coming from people all the way to the right within the GOP. Their threat to get concessions is leave the House in such chaos that either it can't function or the Democrats take advantage of the chaos somehow. That's not something I've seen before. And either way, it hurts the party that they will certainly stay with.

Also, the concessions that those centrists want are usually personal (like prime committee assignments, spending in their home state or district, etc.) or about specific bills and not about how the whole party and chamber is supposed to work.

...I continue to think it’s much more useful to evaluate this as promises made/promises broken than some sort of hijacking exercise that arose out of thin air.

That might be Matt Gaetz and co.'s version of events, but I don't know if the promises between McCarthy and that faction are public knowledge beyond rumors. And anyway, my point was to say that it is dumb for the House to work in a way that 8 members out of 435 can have that kind of leverage over basically anything and everything that the House does. Individual bills? Sure, anyone that could swing either way in a close vote has leverage. That is totally fair game.

We see this crop in parliaments. If the ruling coalition is a slim majority, then a small party that is part of that coalition can punch well above its weight class. But the consequence of it actually leaving the coalition is for the whole government to collapse and trigger new elections for all seats. That is really a "nuclear option" in party politics.

I suppose control and leadership of a legislature should be fragile if there is a slim majority. But the benefit for the people in such a situation is if it drove the parties to cooperate more. Here, we are seeing how the slim majority Republicans have in the House is actually enabling the more extreme Republicans that have low national support. Much like the small, but radical party in a ruling coalition of a parliament, this situation causes disruption for its own sake or allows for political minorities to win far more often than they should.

Some Founders definitely saw "factions" like today's political parties as being detrimental to good government. They weren't right about everything, but they sure were right about that.

**McCarthy’s version of the story last night was that Pelosi had promised him Dems (as the adult party of regular order, yada yada) wouldn’t vote to oust him in a situation like this.

If true, then it brings up the question of what Pelosi was supposed to get for the Democrats in exchange for protecting him from radicals in his own party. Did McCarthy hold up his end of that supposed bargain? Was his bargain with Pelosi mutually exclusive with his promises to the ultra-MAGA crew?

[myself]

McCarthy had another option.

Gain support of a majority of Republicans and a handful of Democrats.

The idea that you can have zero compromise with the other side means that your side it governed by its most extreme members.

He could have simply told Gaetz to go pound sand and he would have had a far more functional government for it.

[Life of Brian]

That might be Matt Gaetz and co.’s version of events, but I don’t know if the promises between McCarthy and that faction are public knowledge beyond rumors.

The CNN link I posted includes an extensive bullet list. Not sure if you consider that "beyond rumors" or not.

And anyway, my point was to say that it is dumb for the House to work in a way that 8 members out of 435 can have that kind of leverage over basically anything and everything that the House does.

This seems a wee bit of an exaggeration. There was a list of discrete issues, and again nobody held a gun to his head. He agreed in order to get the votes. This does not seem conceptually different than other leverage-based negotiations in politics.

If true, then it brings up the question of what Pelosi was supposed to get for the Democrats in exchange for protecting him from radicals in his own party.

Given that the first thing acting Speaker McHenry did was kick Pelosi and Steny Hoyer out of the cherry offices that McCarthy had let them stay in since he took over, that seems like at least a partial answer. I'm sure there was more to it than that, but it does further support the notion that there was some cozy mutual backscratching going on.

[myself]

This seems a wee bit of an exaggeration. There was a list of discrete issues, and again nobody held a gun to his head. He agreed in order to get the votes. This does not seem conceptually different than other leverage-based negotiations in politics.

Again, why did he have to negotiate with the extremists in his party? He could have talked to the Democrats and played them off each other.

Given that the first thing acting Speaker McHenry did was kick Pelosi and Steny Hoyer out of the cherry offices that McCarthy had let them stay in since he took over, that seems like at least a partial answer. I’m sure there was more to it than that, but it does further support the notion that there was some cozy mutual backscratching going on.

It sounds like letting folks keep their offices was a fairly long-standing tradition. Kicking them out is less getting rid of the "cozy mutual backscratching" and more mean spirited breaking of norms to screw with people (he literally did it while Pelosi was traveling to attend Feinstein's funeral).

[Magister]

McCarthy was thrown out as Speaker by Republicans who were not happy with his accommodation of bipartisan interests; same as Cheney, just a difference of degree. (I don't expect he will be booted out of the House by a primary challenger.)

[shawn_dude]

McCarthy has a generally safe Republican seat in the area East of Los Angeles. Bakersfield is not a hotspot of liberalism in California. However, they have elected Democrats in recent past, including Kamala Harris and Kevin de Leon. McCarthy’s biggest risk is any aspect of the “loser” moniker he might carry. Voters, but especially MAGA voters, aren’t always kind to losers. Should Trump decide to toss McCarthy aside (Trump famously hates losers, too), he could encourage primary challengers.

Given that California is not going to pass any sort of anti-choice or anti-LGBT legislation, McCarthy doesn’t have to worry about an unusual mobilization of Democrats to the polls. BUT (big but), California uses ranked choice voting which give other candidates more space to surprise the polls.

(Note: California redistricting has changed district numbers and sizes. McCarthy is now District 20. )

[JasonT20]

I don't think California has ranked choice voting. Alaska has been trying it recently, though. California has top-two open primaries, where the top two candidates go on to the general election regardless of party affiliation.

[Life of Brian]

An example, not a hero

I fully agree he's now an example. Of the FAFO sort.

I think McCarthy is as much a loser as Life of Brian.

As sticks and stones go, that's really disappointingly weak sauce. If you don't get on the horn and amp things up, I just might have a night where I won't be crying myself to sleep over what some overbearing internet rando thinks of me.

[Magister]

Obviously you were bothered enough to try to revive the argument in a new thread, just so you could lose it again.

[Life of Brian]

There's no argument happening, perhaps aside from the voices in your head. I just thought it was funny that the "example" you had just pumped up so much a couple of days ago totally hit the skids, and in a way clearly nobody (including McCarthy himself!) believed could happen. I could see why you wouldn't be chuckling so much, but no need to be bitter about it.

[Magister]

Couldn't get it out of your head, huh?

[Life of Brian]

I'm sure that's the story you're itching to tell yourself, but sadly for you I just happened to see this minor news item near the classified section about the speaker of the house getting unceremoniously drummed out because of repeated unnecessary caving to Team Blue, and it triggered this thing called a "memory" of your recent caterwauling about the very same subject. Your mind may well work differently.

[Sarcastr0]

So much for Magister’s latest heroine.
This you? You sure do seem very Not Mad.

Maybe we’re nearing the end of the firehose of money trained on Ukraine after all!
Yeah, you're very not thinking much about this at all.

[Life of Brian]

And a new troll tags in, with self-prohibited mind reading to boot! Good times.

[Sarcastr0]

What is your definition of a troll? I'm pretty sincere in what I say, even if you don't like to hear it.

[Life of Brian]

The standard one. Insincerity is but one of many tactics of the troll. (Pro tip: you're in the middle of a two-tier inflammatory/digressive jaunt.)

[Frank Drackman]

I've heard California's pretty tenacious going after even temporary residents for their confiscatory State Income Tax, including visiting professional Ath-uh-letes (depending on deductions Manny Machado pays a little over $4 million in California state tax) Wonder if Lafonda's been paying any?

Frank

[Dr. Ed 2]

good point,

[Brett Bellmore]

That was my thought. Given that she still owns property in California, there's a good chance that the state still hasn't officially admitted she left.

[The Margrave of Azilia]

I’m going to speculate that Republicans will be reluctant to “pounce” on this, given the widespread bipartisan disinclination to live “back home.”

[Jazzizhep]

I doubt they will not pounce for that reason. She checks so many boxes it’s just not worth the headache of constantly being asked “why do you hate black, gay women so much?”

[Rev. Arthur L. Kirkland]

Who hates Black, gay women?

Surely not the culture war casualties who operate or are fans of a remarkably white, strikingly male, faux libertarian, right-wing blog that caters to bigots of all stripes.

[Michael P]

It absolutely is worth being asked that question. Asking that question shows that Democrats are thoroughly bigoted along every axis imaginable, and not afraid to project that into others.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Reading it literally to mean only elected, not appointed, would mean that every appointee could not execute any of a Senator's work until the next election. Get appointed to a term with 5 years left, and you can't vote for 5 years. Could you even debate? I doubt it.

[Zarniwoop]

Could you explain why you think that? I'm not seeing the logic that a person who is "appointed" as opposed to "elected" doesn't get to vote or otherwise be a "real Senatuh".

[ducksalad]

Yeah, actually you could read it the exact opposite: the residency only applies at the instant of an election. Therefore, Butler has until November 2024 to move to CA, and only if she wants to run in the next election, and she only has to stay there for Election Tuesday.

[Zarniwoop]

As I read it, the "when elected" clause applies solely to the state residency clause, and does not apply to the age and citizenship clauses.

But that's sort of orthogonal to the assertion by Á àß that "appointment" versus "election" thingy continues to impact a Senatuh even after they've been sworn in. I'm not seeing that at all.

So if there's a logic in there somewhere, I'd love to hear it.

[TwelveInchPianist]

Someone who was not elected was necessarily not a resident of the state for which they were chosen when elected.

But of course that reading is impossible to harmonize with the 17th Amendment.

[Zarniwoop]

I'm not following that. Can you explain like you're talking to a class of first semester 1Ls?

As far as I can tell, the "when elected" clause applies only to the residency requirement. Are we agreeing on that part?

If so, how does that translate to "an appointed Senatuh doesn't get to vote even after they are sworn in" as apparently posited by Á àß?

The 17th Amd pretty clearly differentiates elections and appointments:

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.

What's the incompatibility with the 17th Amd that you see?

[TwelveInchPianist]

As far as I can tell, the “when elected” clause applies only to the residency requirement. Are we agreeing on that part?

Yes.

If so, how does that translate to “an appointed Senatuh doesn’t get to vote even after they are sworn in” as apparently posited by Á àß?

If I understand Á àß?'s reading, they don't get to be Senatuhs at all until elected, because a Senatuh who is not elected is necessarily not an inhabitant of the state when elected. You know, since they weren't elected at all.

What’s the incompatibility with the 17th Amd that you see?

Um, the 17th says that people who are appointed but not elected can be Senatuhs.

[Zarniwoop]

What’s the incompatibility with the 17th Amd that you see?

Um, the 17th says that people who are appointed but not elected can be Senatuhs.

Aha! Yes, we are on the same page there too. Thanks!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Sorry for the delay.

If she's appointed and it's five years to her re-election, and she can't be a Senator until she's elected, then she can't vote for five years.

All I really meant is that anyone can quibble about such nonsense, and mine is as good as any of the others.

What's really bizarre is why the guv thought the smart thing to do was appoint a Maryland resident, since the only qualifications he cared about were black and female. Surely he could have found one who lived in the state.

[Brett Bellmore]

Now, that's not true: He also cared that she was a lesbian, and demonstrably a reliable left-winger.

Just black and female gets you down to 2.5% of California. Age requirement? 1.2%? Adding lesbian gets you down to 0.02%, maybe. Demonstrably a reliable left-winger? It's quite possible that he just couldn't tick all those boxes if he limited himself to California residents.

[Brett Bellmore]

Just to be clear, I'm not saying that there wouldn't likely be hundreds of reliably left wing black female lesbians (These days you have to specify that you mean female lesbians, not the male ones...) in California who meet the Constitutional qualifications.

But almost all of them wouldn't be prominent enough that he'd have any way of finding them. Doesn't matter if they meet his criteria if he has no way of knowing it.

The point here is that if you demand the intersection of enough minority categories, your candidate pool shrinks phenomenally, and possibly ends up being empty.

[Don Nico]

The appointment is only for 1 year plus a few months. Maybe Butler will run. But I doubt Barbara Lee will step aside. She is a black woman who has waited in the wings for years.

[jb]

Your argument still doesn't make any sense, or at least it doesn't have any relationship with the text of the Constitution.

The Seventeenth Amendment explicitly provides that Senators can be filled by the state executive rather in the event of a vacancy. There's no language requiring that they be elected in this case.

[Longtobefree]

They represent the state, and were sent by the legislators thereof.
Maybe they were "elected" but not by the citizens; maybe they were anointed, maybe they bought their way in.

Frankly, my dear - - - - - - - -

Just another fascist who will be embraced by the other fascists.

[Alpheus W Drinkwater]

"You keep using that word. I don't think it means what you think it means."
--Inigo Montoya

[Rev. Arthur L. Kirkland]

Originalism is the pretzel that becomes more and more twisted -- and, reliably, in a partisan direction!

Carry on, clingers. But only so far as your betters permit.

[Idihax]

A black lesbian woman is certainly not my "better."

[Rev. Arthur L. Kirkland]

These bigots are your fans, Volokh Conspirators.

And the reason most of you will be relocating to "safe spaces" for movement conservatives.

[Frank Drackman]

Sounds like you've got a few "Klingers" yourself Jerry,
I've heard Toilet Paper is like money in prison, must really itch a lot.

Frank

[MatthewSlyfield]

For those who argue that there is no overlap between elected and appointed in Article 1 Section 2, beware unintended consequences.

From Article 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

Say goodbye to Presidential elections.

[ReaderY]

In saying the terms are different, I’m not saying there is no overlap. Popular ballots can be a manner of appointment for presidential electors. But a state legislature could also provide for them to selected by themselves, or by the governor, or by a lottery. The term “appointed” is in this sense more general.

[MatthewSlyfield]

Not buying the argument (well, assertion) that appoint here is used more generally than elected in the article 1 qualifications clauses.

[jb]

I don't understand your point.

All of the state legislatures have decided that the electors will be appointed based on the outcome of elections in the states. In theory they could choose some other mechanism such as letting the governor decide, whereas the Seventeen Amendment requires direct election of Senators. So yes, there's a difference but it seems unlikely that states are going to undo popular elections as a way to choose electors so I'm not super worried about this.

[Brett Bellmore]

Actually, though, a fair number of states are entering into an agreement to undo their own popular elections as a way to choose electors, in favor of substituting the nation-wide popular vote even if their own voters voted differently.

So it's hardly totally off the table; If you're willing to ignore what your own citizens say in favor of one alternative, you might do it in favor of another.

[jb]

Even that mechanism is based on the results of a popular election; the only question is whether it's the statewide popular election or the national one.

But yes, it wouldn't surprise me at all if some Republican state decided that really the heavily gerrymandered state legislature should pick the electors rather than that people. Seems like the kind of thing that might annoy people enough to actually have some negative consequences, though.

[JasonT20]

So it’s hardly totally off the table; If you’re willing to ignore what your own citizens say in favor of one alternative, you might do it in favor of another.

For your statement here to fit, these states would have to be signing onto the NPV compact even though their residents don't want it to be a part of that compact. I've lived in counties where a senator or governor won that was different than how my county voted. How is that different than the NPV? Should I be upset that the vote total of my county doesn't factor into choosing a governor and it is only the statewide total? There is no requirement that the electoral votes for a state be winner-take-all, even. (Maine and Nebraska's method further encourages gerrymandering [1 EV per House district won + 2 for the statewide winner], so I would be against that. I would totally support every state assigning its EVs proportional to the statewide total, though. I think that is a totally doable alternative to the NPV for people that are against it.)*

In the minds of some Americans, a state is more than a political subdivision of the whole nation, but is somehow its own entity with "rights" beyond the rights of its residents.

I see the confusion in you as you used the word "citizen" instead of "resident" in regards to people living in a state. Americans are only citizens of the United States. They do not have citizenship with a particular state. The only thing we need to do in order to wield political power in a different state is to legally register to vote there, and the state's rules for doing that must be consistent with federal law. There is no cumbersome naturalization process that takes years like for immigrants looking to become U.S. citizens. Federal law doesn't mandate it, but some states allow U.S. citizens to register to vote in their state on the same day of an election and cast a ballot right then.

*Convincing Republican politicians and voters to go along with this would be a very steep uphill battle. As things stand now, they like winner-take-all in the EC because it favors them.

[ReaderY]

I think the use of the term “appointed” in other parts of the constitution cuts against rather than favors Professor Sach’s argument. Both presidential electors and federal officers are not required to be decided by popular election, and the use of the term “appointed” rather than “elected” matters. This cuts against Professor Sach’s claim that the terms are used interchangably.

I understand that presidential electors “elect” the President, so “election” can refer to being chosen by a body other than the citizenry. It might thus be reasonable to say that prior to the 17th amendment, senators chosen at the normal times were elected by the state legislature in much the same way the President is elected by the electoral college.

But when an official is chosen by an executive officer, such as federal officers and judges nominated by the executive with or without Senate consent, or Senators chosen by a state governor, the constitution always uses “appointed.” It never uses “elected.” A claim that this consistent usage is all just coincidence and the terms are really just interchangable seems a bit of a stretch.

So

[Zarniwoop]

IMHO the 17th Amd clearly differentiates “appointment” and “election” in the specific context of how Senatuhs get sworn in:

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.

[ReaderY]

It’s not just the 17th Amendment. I’m saying usage is different across the Constitution. Whenever an official is selected by an executive officer or by the courts, the constitution always uses “appointed,” never “elected.” Professor Sachs is saying the two don’t really mean anything different. I think the difference in usage is an argument they do mean something different.

[MatthewSlyfield]

"Both presidential electors and federal officers are not required to be decided by popular election, and the use of the term “appointed” rather than “elected” matters."
I don't see why that shouldn't cut both ways.

[ReaderY]

It’s a false dichotomy. Appointed in a manner to be specified by the legislature doesn’t prohibit an election as the method. It permits methods that don’t involve elections.

Presidential electors are nonetheless appointed officials, not elected ones. They have no right to be elected, and they aren’t treated the same as officials elected as of right. They represent the state’s government, not its people.

And that I think gets to the heart of the issue. Elected officials, representatives of the state’s people, have to come from its citizenry, have to be one of the people at the time of their election. But it would be rational for the framers not to require this of appointed officials, representatives of the state’s government.

After all, there’s no residency requirement for Presidential electors. There’s no residency requirement for federal officials. There’s no residency requirement for any other appointed official mentioned in the constitution. But there are residency requirements for elected officials, even when elected by the electoral college. Only elected officials have residency requirements. As I see it, the general use of the terms in the constitution goes against rather than favors Professor Sachs’ argument.

[David Welker]

ReaderY:

Article II, section 1, clause 2 states: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors"

But from Article I, section 3, clause 1 says that the Senators shall be "chosen" by the legislature while clause 3 says that such Senators who are chosen are considered to have been "elected."

But the manner in which a state legislature "appoints" an elector and it "elects" a Senator were the same. Namely, a vote is held by the legislature which either elects or appoints the individual directly, or establishes a process by which the individual will be elected or appointed.

That the word "appoint" is used for electors and "elect" is used for Senator despite both being chosen by the legislature in the same manner shows that a sharp distinction between these words in the Constitution was not contemplated.

[ReaderY]

If it’s really the same thing, if there’s no distinction, then why didn’t the constitution impose a residency requirement for presidential electors? Only elected officials have a residency reqirement, never appointed officials.

As mentioned above, Senators chosen by the state legislature are elected Senators. And a state legislature could have the state’s governor choose the presidential electors if it wanted to.

[David Welker]

ReaderY:

I am not a mind reader. I don't know why the Constitution doesn't have a residency requirement for electors. Perhaps it was an oversight or perhaps the view was that since the office of elector was temporary, it wasn't necessary to specify such a requirement. Perhaps the view was that state legislators would have a tendency to favor their own citizens, and thus it need not be enforced. (But that same argument would apply to Senators.) You might recall that the Constitution is intentionally short. After all, it was intended to be read by ordinary people and debated by them as well. Also, it establishes a general framework for government and is intended to create a framework, not specify every detail.

I think your observation that "only elected officials" have a residency requirement never "appointed officials" is quite a stretch. In general, the vast majority of appointed officials work on behalf of the federal government and not a particular state. Why would there be a residency requirement for a federal Secretary of State EVEN IF that was an elected rather than appointed position? Secretaries of States must be residents of New York while Secretaries of War must be residents of Virginia??? In general, such appointed officials can come from any state. The only "appointed" officials I can think of where residency requirements might make sense are members of the electoral college. Your reasoning that other appointed officials, such as the Secretary of State also do not have a residency requirement doesn't seem to prove much. It is rather strange to say that a presidential elector is more like a Secretary of State than they are like a Senator, when really, they aren't that similar to either, but if they are like anything, they are more like a Senator since they were originally probably imagined as a group that would convene as a body and debate among themselves who should be selected as President.

Furthermore, it should be pointed out that the Electoral College failed as an institution. I believe that this was because the Constitution did not specify enough details about how it should function. For example, it did not specify that it should meet as a body and debate who was to be President. The Constitution is not a perfect document and it sometimes makes errors in terms of being underspecified. So, I think that especially makes your observation that "elected" = "residency requirements" versus "appointed" = "no residency requirements" thesis untenable in that it assumes more precision in the language chosen than actually existed. In other words, the best argument for why the Constitution does not have residency requirements for electors is probably because it was an oversight. I also have heard that it was very hot in Philadelphia that summer and people wanted to go home after a very long debate.

[mydisplayname]

"[T]he executive who made the appointment having certified that said Stanley Griswold is a citizen of said State" had weight back then, just as an executive's pronouncement of an invader or insurrectionist has weight today.

An insurrectionist is one deemed so by the Chief Executive, subject to future reversal by Congress. An invader is one deemed so by a Governor or by the Chief Executive, not necessarily subject to reversal but subject both to the power of the purse and to the power to invoke often-unwritten international law of warfare.

[NvEric]

What some are missing is the reason there are definitions to who can be a senator - elected or appointed. Definitions on who can be a senator are what they are no matter the path to that position.

To want otherwise goes to why the practice of LAW is viewed as it is by the public. Devising schemes to win a case is moral turpitude.

[Michael Ejercito]

I wonder if Governor Newsom and his staff forgot about Jackie Lacey.

[Frank Drackman]

Jackie Mason probably would have been more qualified, but besides not eating at the Y, Lacey would have this problem....
"Lacey lives in the Granada Hills neighborhood with her husband, David Lacey. They have two adult children, Kareem and April.[48] Lacey's husband David defended his house with a gun on March 2, 2020, when in the dead of night when 30 protesters came to their home to demand her resignation and knocked on their door.[38] He was subsequently charged with three counts of assault with a firearm by the California Attorney General's Office but found innocent.[4"

Frank

[Religion and Politics, my life]

I still can't believe that Hillary got to be a Senator from New York. On what basis? Solely that big bucks allowed her to claim several residences. A billionaire could have a legal residence in every state and run from the best vantage point. Residency should mean where is the ONE place that is home. If you say , Well, maybe I divide my time equally among several states. Then I say, that should disqualify you on the face of it. You call nothing home? Then why should you represent my home?

[ReaderY]

That’s a political view, not a constitutional one. You’re entitled to that view. But the people of the State of New York disagreed with you. And they are entitled to do that too.

The constitutional requirement is primary residence, not sole residence, and it permits people with multiple homes to designate one of them as primary.

[Brett Bellmore]

"So must it?"

I mean, sure, you can make a very strong argument that she doesn't meet the constitutional requirements.

But nobody but the Senate is in a position to enforce them, and the majority of the Senate Just. Won't. Care.

Well, I suppose that there's a reason "That's academic!" is a dismissal...

[Idihax]

Even if she doesn't, the Constitutional provision doesn't have a time period for which one must be a resident. So he could withdraw the appointment, she could move to California tomorrow, and he could reappoint her on Friday.

Not really something I'm going to get upset over.

[Mr. Bumble]

Hmmm. Funny that there is no time period of residency for Representatives or Senators. That would prevent carpetmunchers,( er. I mean carpetbaggers) from jumping in or being "selected not elected".

[Idihax]

Well, at the time the Constitution was written, there was no real means of transport besides horses.

So someone couldn't get from Maryland to California (I recognize the latter wasn't a state at the time of the founding, but my point stands) in 6 hours, and finding a place to live and moving was much more of an ordeal as well. So the founders probably just didn't think of this possibility.

[Brett Bellmore]

Sure, he could, and IIRC he noted that in the earlier post.

But they won't do that, because not enough people in a position to do anything about it care.

For multiple reasons. The Democrats of course won't care because she's a reliably left-wing black lesbian. Those are the only boxes they actually care about checking.

Both the Republicans and the Democrats won't care because too many of them aren't actually residents of the state they represent, having moved out and never looked back after being elected.

So that's just a can of worms they won't want opened.

[Idihax]

https://www.cnn.com/2023/10/03/business/trump-fraud-judge-mar-a-lago/index.html

This assumes the judge was acting in good faith. He wasn't.

[tkamenick]

Blackman's analysis does rely heavily on the fiction that the modern canon of different words always having different meanings had equal force to legal writers back then.

[Darth Buckeye]

Why spoil the beauty of a thing by talking about legality?

[Darth Buckeye]

Average Californians, including progressives, probably will not be happy about having a person with little emotional and social connection to the state being pushed in as their “representative.” Wasn’t there a post in this blog several years ago about the “costs” of representation?

Butler is more a representative of the NGO-sphere than of California. And Butler will have a lot of institutional support from that sphere if she chooses to run for election to the seat. This is an example of how the Democratic party is becoming a party of and for the special interests and the managerial class and less one for genuine progressive issues.

[Sarcastr0]

little emotional and social connection to the state

Her resume, from Wiki:
"In 2009, she moved to California, where she organized in-home caregivers and nurses and served as president of SEIU United Long Term Care Workers, SEIU Local 2015.
Butler was elected president of the California SEIU State Council in 2013. She undertook efforts to boost California's minimum wage and raise income taxes on the wealthiest Californians.
As president of SEIU Local 2015, Butler endorsed Hillary Clinton in the 2016 Democratic presidential primary. Butler was one of California's electors who voted for Clinton in the 2016 election.[9]

In 2018, California Governor Jerry Brown appointed Butler to a 12-year term as a regent of the University of California. She resigned from her role as regent in 2021.

Butler joined SCRB Strategies, a California-based political-consulting firm, as a partner in 2018. At SCRB, she played a central role in Kamala Harris's 2020 presidential campaign.
She was known as a political ally of Harris's since the latter's first run for California Attorney General in 2010, when she helped Harris negotiate a shared SEIU endorsement in the race. Butler also advised Uber in its dealings with organized labor while at SCRB."

little emotional and social connection to the state
Don't make stuff up like a moron.

[Frank Drackman]

I say lets give the new Madam Senator from California a fair chance, not like she can be any worse than Di-Fi or even Calvin Loathsome. And did she ever abandon a young lady (I hear she's into the ladies) to asphyxiate?? (not drowned, there's a difference)

Frank

[Rico Suave]

When it comes to allowing government officials to stretch and contort the constitution, I tend to be a "slippery slope" kinda guy. Look what happened after the government used the COVID-19 public health emergency to suspend rights. A few years later, the governor of New Mexico tried the same thing declaring gun safety a public health emergency.

If we're saying you can appoint anyone to an open Senate seat, why bother with the charade of trying to establish residency?? Does the new senator even need to be a citizen??

[Frank Drackman]

Knew that would happen when they let a Kenyan become President.

[Idihax]

Don't forget terrorist Muslim homosexual.

[iowatwo]

Iowa had Senator Harkin.
While he was from Iowa when elected, he soon spent his time in DC or his residence in the Bahamas. Yet the voters in Iowa still continued to elected him.

[Longtobefree]

What difference, at this point, does it make?