The Volokh Conspiracy
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Laphonza Butler Better Hope Other Senators Are Textualists
The residency requirement for Senators applies to those who are "elected," and not "appointed."
The distinction between elected and appointed positions is hardwired into the Constitution. This distinction arises in many contexts: the Foreign Emoluments Clause, Section 3, and now the qualifications for the Senate.
Article I, Section 3, lists three qualifications to serve in the Senate:
No Person shall be a Senator who shall not have (i) attained to the Age of thirty Years, and (ii) been nine Years a Citizen of the United States, and (iii) who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
The first two requirements apply when the Person "shall be a Senator." That is, when the person actually seeks to hold the position. But the third requirement applies at a very specific time: "when elected." In modern times, that would mean on election day. But in 1788, there were no senatorial elections. Under the original design of the Constitution, Senators were not directly elected by the people. Rather, they were chosen by the state legislatures. Still the Constitution uses the language of "elected" in Article I, Section 3. The Constitution also uses the language of "elected" to refer to Senators in the Ineligibility Clause:
"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 [i]ncreased during such time."
Indeed, that provision uses both the language of "elected" and "appointed."
Moreover, under the original design of the Constitution, if a Senate vacancy arose when the state legislature was in recess, "the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." Notice the language: "appointments," and not "elections."
The Seventeenth Amendment changed the method by which senators were chosen. Now, senators would be "elected by the people." But the Seventeenth Amendment still allowed the state executive "to make temporary appointments."
In 2021, Seth Barrett Tillman and I discussed the Governor's powers to fill Senate vacancies in an article about insurrection:
"The Constitution authorizes a governor to temporarily fill a senate vacancy by appointment. In these situations, it is not clear that the inhabitancy qualification applies, as temporary senators are not 'elected.'"
As often happens, Seth and I write about obscure textualist issues that only become relevant much later. And so it has come to pass, once again.
Co-blogger Steve Sachs describes the latest controversy from California:
According to his official website, California Gov. Gavin Newsom on October 1 appointed Laphonza Butler to the Senate, to complete the term of the late Sen. Dianne Feinstein. Butler was apparently a Maryland resident as of very recently, but according to Newsom's office she plans to re-register to vote in California before her Wednesday swearing-in. . . .
Until recently, Butler wasn't an inhabitant of California. She lived there much of her life and apparently still owns a home there. But since then she moved to Maryland, where she made political donations and worked for a political committee.
Newsom's office has suggested that it'll be enough for Butler to re-register to vote in California before being sworn in on Wednesday
Steve suggests that the residency requirement attaches to both Senators who are elected by the people, and appointed by the Governor:
The phrase "when elected" is broader than that, because it was adopted as part of the 1788 Constitution, when each state's senators were "chosen by the Legislature thereof" (Art. I, § 3, cl. 1), usually one legislative house at a time. So "elected" here means a whole process of official choice, not only some first-past-the-post vote by the general citizenry. . . .
The Seventeenth Amendment was adopted "in lieu of" the "chosen by the Legislature" requirement, as well as "so much of paragraph two of the same section as relates to the filling of vacancies." But it left the qualification requirements in Clause 3 intact. So the "when elected" requirement is still good law, and its most natural reading would include whatever form of official choice establishes a person as a putative senator.
I disagree. Elected means elected. And appointed means appointed. Both types of language (elected and appointed) language were used in the Constitution of 1788, and in Seventeenth Amendment.
And Seth offers an explanation for why the Framers may not have imposed the residency requirement on temporary Senate replacements:
It is not difficult to understand why the Framers of both the original Constitution of 1788 and the Seventeenth Amendment made this choice. The nation was geographically vast. It would take time to hold an election and, similarly, it would take time for a temporary appointee from one's home-state to physically move to the national capital. The capital itself, over time, would become the home to many former representatives, former senators, and other former senior government officials. It would make sense for states to be able to draw on these individuals as a temporary matter to fill vacancies—even where such appointees had no home-state residence. Where a candidate was filling a full six-year term, one wanted him to have home-state connections. But where a candidate was filling a temporary trust, it would make sense to loosen residence requirements so that a state could immediately have senate representation. For similar reasons, the strictures of the Ineligibility Clause applies only to elected members, and not to temporary senators holding short appointments.
Once again, a textualist reading of constitutional qualifications may lead to results that some view as unsatisfying. Of course, such consequentialism begins with a specific starting point: qualifications should be enforced rigidly. There is a different potential starting point: qualifications should not be enforced rigidly, but rather the democratic process should prevail. (Hint, hint, Section 3, Section 3). Let us not forget that the Senate has issued oaths to several members who were under the age of 30. Seth and I make this point in our tome on Section 3:
History supports this understanding of congressional practice. William Claiborne of Tennessee, who was born in 1775, was elected to and then began serving his two-year House term in 1797. He was only 22 years old. The House did not disqualify him. Claiborne was re-elected in 1799, when he was still not yet twenty-five. It was only some time during his second term that he finally reached the age of twenty-five.
Other examples abound. In 1806, Henry Clay of Kentucky was elected to the Senate by his state legislature. He took the oath, and he began serving while he was still twenty-nine years old. In 1816, the Senate administered the oath to Armistead Mason of Virginia, who was elected by the state legislature to a Senate term to fill a vacancy. The unexpired term would stretch about a year. At the time of Mason's election, he was twenty-eight years old. His elected term ended in March 1817, and he was still several months shy of his thirtieth birthday when his term ended. In 1818, the Senate administered the oath to John Henry Eaton of Tennessee. At the time, Eaton was only twenty-eight years old. According to the Senate Historical Office, "Apparently no one asked John Eaton how old he was."
Laphonza Butler better hope that the other Senators are textualists like Tillman and me. Or perhaps no one asks where she lives.
