The Kentucky Legislature Removed The Governor's Power To Temporarily Appoint A Senator

Would the Governor's veto of the bill have even been effective?

Back in August 2023, I wrote about a potential Seventeenth Amendment conflict in Kentucky. Under Kentucky law, in the event of a Senate vacancy, the Governor could only appoint a temporary Senator of the same political party as the former Senator. The Kentucky Legislature has a Republican super-majority with a Democratic Governor. And the Governor indicated that he thought this constraint on his powers to appoint a Senator violated the Seventeenth Amendment. Vikram Amar suggested there were indeed problems. As history played out, Senator Mitch McConnell of Kentucky remains in office, so this issue was never tested.

However, the Kentucky legislature took another, even more potent step: it stripped the Governor of the power to appoint any temporary Senator. The Seventeenth Amendment does not require the Governor to even have this power. It provides, in part:

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: 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.

May, not must. I see no constitutional problems with the text of House Bill 622, which repealed KRS 63.200. But, perhaps unsurprisingly, the Governor vetoed HB 622. He wanted to keep the same temporary appointment power that his predecessors had. Ultimately, the legislature overrode the veto, so HB 622 became law.

This sort of politics is not new. Consider the flip-flop by the Massachusetts legislature. In 2004, Senator John Kerry was running for President, and there was a Republican Governor, Mitt Romney. The Democratic legislature stripped the Governor's power to make a temporary appointment, lest Mitt Romney temporarily appoint a Republican Senator. Five years later, in 2009, Senator Ted Kennedy was quite ill, and there was a Democratic Governor. The Democratic legislature restored the Governor's power to make a temporary appointment. That way, a temporary appointment would maintain the Democrats' 60-vote bloc in the Senate, and support the Affordable Care Act. (I wrote about this history in Unprecedented.)

For a moment, consider a counterfactual. If the Kentucky legislature did not override the Governor's veto, would the veto have been effective? You may say, of course a Governor's veto would be effective. But not so fast. If the Constitution assigns a function to the "legislature of any state," does the Governor have any role in that process? Or does the "legislature of any State" actually refer to the entire apparatus of the state government, including the executive's veto power, and perhaps judicial review by the courts? This latter argument would sound in the anti-ISL theory from Moore v. Harper.

There are some textual differences between the Seventeenth Amendment and the Elections Clause. The Elections Clause provides, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The Moore Court observed that this clause specifically refers to the broader lawmaking process under the Constitution, which would include the executive and judicial branches. Laws that are prescribed by the state are passed by the legislature, approved by the governor, and reviewed by the courts for conformity with the state constitution.

By contrast, the second paragraph of the Seventeenth Amendment refers to two specific actors: "the executive authority of such State" and "legislature of any State." This text seems to distinguish between the separate branches of state governments. If the legislature gives the Governor the power to fill those vacancies, the Governor can fill those vacancies. (I do not think the Governor is required to make a temporary appointment, but he "shall issue writs of election.") But the Governor lacks that power if the Legislature withholds it. The Moore v. Harper argument does not naturally graft onto this text. Likewise, the decision to "empower" or disempower the executive belongs to the "legislature." Would it flout the Seventeenth Amendment if the Governor could prohibit the legislature from disempowering the Governor through a veto? And query whether the repeal bill would even be subject to judicial review?

There is also a related line of cases about whether the President must sign a constitutional amendment. Seth Barrett Tillman wrote about it here. And Mike Rappaport offered some thoughts about when governors have to sign constitutional amendments.

Moreover, it is useful to compare the Seventeenth Amendment with the predecessor provision in Article I, Section 3, Clause 2:

if [Senate] 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.

This text expressly granted the Governor the power to make temporary appointments, and that power could not be taken away by the legislature. By contrast, the Seventeenth Amendment took away the absolute temporary appointment power from the Governor, and allowed the state legislature to make the decision. This shift makes sense, since in the normal course the pre-Seventeenth Amendment legislature would choose senators; the governor played no formal role in that process. The Seventeenth Amendment at least preserved some role for the legislature to play in the event of a temporary vacancy.

Finally, if we are being originalists, we should look to the meaning of "legislature" during the Progressive Era, rather than in 1787.

Then again, I think there would have to be a careful study of practice. For example, were the appointments of Senators by state legislature prior to the Seventeenth Amendment presented to Governors? Did the state courts play any role in reviewing those appointments? This may be a question that winds up in the construction zone.

I do not know if the Governor's veto of the bill would have been effective. Since the legislature overrode it, there is no need to test the issue.

I thank Professors Rob Natelson, Seth Barrett Tillman, and Mike Rappaport, for helping me think through some of these fun issues.

Comments

[Dan Schiavetta]

This is not unique — a Republican legislature stripping powers from the Governor as soon as office is filled by a Democrat. This is destabilizing, especially if Democrats start using the same tactic.

[Brett Bellmore]

It's destabilizing having to worry about a Governor flipping a seat temporarily via appointment, too. But you'd need a constitutional amendment for the best solution: Vice-Senators.

[Sarcastr0]

We've been going along with these kinds of procedures in one state or another for a very long time.

Partisan power-stripping when the governor is of the other party is new, and GOP-specific.

Of course you love it.

[Bob from Ohio]

"“In 2004, Senator John Kerry was running for President, and there was a Republican Governor, Mitt Romney. The Democratic legislature stripped the Governor’s power to make a temporary appointment”"

Not "Partisan power-stripping " I guess.

[Sam Bankman-Fried]

Remember when you thought sacrificing our best and brightest to slaughter innocent Muslims would bring joy to your life??

[Sarcastr0]

OK then, that was bad 20 years ago.

Don't use that to pretend this is some symmetrical tactic.

[Absaroka]

"Don’t use that to pretend this is some symmetrical tactic."

Can you share your data, or some anecdotes? The OP lists two examples, one per party. My first guess was 'both parties[1] have been doing this kind of shenanigan since the 1700's'. But that's an untutored hunch; you presumably have harder data?

[1]I say 'both', but really all, including the parties before the current two.

(but I bet the Libertarian Party never did ... because they never had a majority 🙂 )

[Lee Moore]

It’s not quite symmetrical as the Rs in Kentucky have only done the first half of the double flip that the Ds in Massachusetts did 20 (and 14) years ago.

He’s pointing out that the Ds a few years back were waaay more cynical than the Rs this time round.

Ya think ? 🙂

[Sarcastr0]

https://www.cnn.com/2021/02/25/politics/republican-legislation-elections-powers/index.html
is a 2021 article that goes into it: “measures have been introduced in at least eight states with Republican-controlled legislatures – including the key battlegrounds of Georgia and Arizona.”
Bills introduced is a bit overtuned, but I found the following examples of lame duck legislatures not just introducing but passing bills to strip incoming governors of power:

NC in 2023
Montana 2021 (just election policy)
Wisconsin in 2018
Ohio in 2018
Michigan in 2018
My search terms did not include GOP; it sure looks like all of these are examples of the GOP doing this.

This trend joins stripping municipalities of local control authority, and micromanaging previously independent institutions like schools. It is the GOP increasingly setting up power structures to allow them to govern from the minority.
See also the trend of conservative billionaires just funding an entire legislature so even the funding can be de-democratized. (Art Pope in NC, DeVos family in Michigan, to a less ‘I own the legislature) extent Uihlein in Wisconsin and Ohio)

[Absaroka]

Thanks!

I'm not seeing the asymmetry you are, and certainly not over some long period. I agree the recent 'voter fraud' thing is all R, but that not the only issue in politics.

"stripping municipalities of local control authority" is a two way street. At least in my state, for example, the D's are very much into the state having lots of control over education. And at a national level, which party wants to get rid of the Dept of Ed?
My take is more that folks who control some level of government - local, state, or national - suddenly find that the particular level they control needs more say in things.

"See also the trend of conservative billionaires just funding"

Have you seen any liberal billionaires throwing money around to push their social policy preferences?

[Sarcastr0]

It’s not over some long period – it’s been a thing since 2018. Or 2016 if you want to say the planning began earlier.

Dept Ed is a bad example because by design it has never had lots of control of education policy nationwide – that’s always been left to the states.
I’m talking about once that authority is with the state, reversing previous long-held policies of local control up to state-level micromanagement. Not just schools or election running, but broader authority to make local ordinances, have mayors, etc.
https://www.washingtonpost.com/nation/2023/11/27/red-states-blue-cities-preemption-control/

It’s another thing that (broadly speaking) GOP states are doing and blue states are not. Which if you’re gerrymandered is again something wherein a minority party to governs a majority that did not vote for them in a way it previously could not.

Have you seen any liberal billionaires throwing money around to push their social policy preferences?
Again, you change my thesis – billionaires playing in federal elections is not in scope.
This is about basically buying state legislatures. Which allows a state legislature to govern in an unpopular way because their funding comes from a very narrow source rather than the people at large.

To sum up:
At the state level (NOT federal) Add up 1) gerrymandering (which both sides do), with 2) GOP stripping governors [not amenable to gerrymandering] of power, 3) GOP stripping local municipalities of power, 4) GOP state-level legislatures being funded by few or even on person.

What you get is a minority being electorally insulted and yet empowered to govern a majority that did not vote for them.

The reporting I've said aligns the timeline with MAGA - this is a trend that’s only been going on since 2018. But it seems to reflect the generally unhealthy way the GOP sees democracy (as illegitimate if the other side can win).

[Absaroka]

I'll just make one comment about the headline of your article: "Antagonisms flare as red states try to dictate how blue cities are run".

1)Equally valid: "Antagonisms flare as blue states try to dictate how red counties are run". If you're not seeing those headlines you might want to expand your sources.
2)That headline exactly makes my point. Blue cities in red states are all about local control, because distant people don't understand the local conditions, etc. But red counties in blue states don't need local control, because we need state wide uniformity, etc, etc.

[Sarcastr0]

Local control has been the bipartisan status quo until recently.

I am positing a change. Maybe you think this is a regression to a cynical status quo but I see some longstanding norms falling.

I feel like (my opinion) this is one of the changes to the GOP that will press it post-MAGA absent the eventual realignment of the 2 party’s political coalitions.

[Lee Moore]

So nothing before 2018 ? So your point is that the GOP is very sloooow in getting round to copying the Dems political cynicism ? Agreed. They’re very slow people.

Meanwhile I also remember the Torricelli / Lautenberg manoeuvre. The slow ones will eventually catch on to that too.

[Sarcastr0]

That's the timeline in the stories I've read - that the trend began during Trump's midterms (though it probably started when Trump was elected)

your point is that the GOP is very sloooow in getting round to copying the Dems political cynicism
Are you leaning on that one 2004 example as what the Dems do? Because that's dumb.

the Torricelli / Lautenberg manoeuvre
Before my time. But whatever grievance you have from 20 years ago doesn't seem to have become a trend nowadays, so don't pretend it's relevant.

[Lee Moore]

Why is that dumb ? By the way I’m also citing the 2010 Massachusetts backflip.

All well within living political memory.

[Sarcastr0]

Leaning on one example from before the trend I am describing does not really come against my thesis, but rather it underscores the asymmetry here if that's all you got.

[tkamenick]

Congratulations, you found a news article about republican legislatures doing this... that relates republican legislatures doing this. Shocking.

[Kazinski]

Our system of government at the federal and state levels is set up to make legislatures supreme, not quite as Supreme as in the parliamentary system, but still the locus of power in their sphere.

Its hardly surprising that a cohesive legislature will make that supremacy apparent in any conflict with the executive and its subdivisions when it so desires.

That’s the way our system of government was designed, so its hardly an abuse of the system, and certainly has a remedy: the next election. But I think in both the Kentucky case, and the Massachusetts case (that should not be mentioned, like so many other topics), that the people will be just fine with this legitimate exercise of the legislature’s power.

And certainly I am not using the MA instance to justify the actions of the KY legislature because they are perfectly legal and need no justification, I’m pointing it out as an illustration of how the system is designed to work when a cohesive legislature wishes to wield its legitimate power.

[Brett Bellmore]

Until you provide data showing that it isn't symmetric, that's just your partisanship on display.

[Nige]

Your only counter-example is twenty years old.

[Dan Schiavetta]

One might add that strongly blue Massachusetts has a habit of electing Republican governors; and that this tactic came back to bite Democrats because Kerry stayed in the Senate, and it allowed Scott Brown to get elected after Ted Kennedy died, ending the Democrats' "filibuster-proof" majority after four months.

Democrats learned how destabilizing this tactic is. Republicans have yet to learn.

[Lee Moore]

How did this allow Scott Brown to be elected ?

The Dems changed the law back to allow the now Dem Governor to appoint a replacement when Kennedy died. The only reason why there was still a special election a few months later that Brown won is that the Dems did not change that bit of the law at the same time, since they clearly could not conceive of the possibility that they might lose the special election.

Brown was elected not because the Dems were insufficiently cynical but because they were oversufficiently suffused with confidence.

[Sarcastr0]

See above, Brett.

I suppose maybe you missed the trend, given your news sources.

[Brett Bellmore]

I don't actually see it as at all problematic to direct that Senatorial vacancies result in special elections rather than appointments by the Governor. So this trend doesn't trouble me.

Any fool can see that partisan polarization has been rising over the last decade, with long standing norms dropping like tenpins. When norms are falling, they need to be replaced with rules. When rules won't be observed, the people who won't observe them need to be taken out of the decision loop.

The reason they took the Governor out of the loop is because he was making noises about refusing to obey the law. Does that mean nothing to you?

[Sarcastr0]

Here is the nut:

“ At the state level (NOT federal) Add up 1) gerrymandering (which both sides do), with 2) GOP stripping governors [not amenable to gerrymandering] of power, 3) GOP stripping local municipalities of power, 4) GOP state-level legislatures being funded by few or even on person.

What you get is a minority being electorally insulated and yet empowered to govern a majority that did not vote for them.”

As to your thesis that this now about protecting norms? That strains credulity. But falling for GOP smoke no matter how weak has rarely been hard for you.

[Brett Bellmore]

1) Nice of you to admit that both sides gerrymander, and I genuinely mean that. So many Democrats pretend it's something only Republicans do.

2) Not so nice to pretend that only the GOP strips governors of power, below an OP that cites an example of the Democrats doing it.

And this is only a realistic issue where one party controls the legislature, and the other the Governorship. Neither party is motivated to do it where they control the legislature AND the Governor. Vermont and Nevada are only current states where you have a Democratic legislature and Republican governor. Compared to five such states with Republican legislatures and Democratic governors. So, of course this is more likely to be done by Republicans, right now.

3) Not so nice to pretend only Republicans do this, either.

4) Say what?

[Sarcastr0]

1) One day I'll check out which party acquiesces more to nonpartisan redistricting plans; I feel that it's way more Dems but honestly have no idea.

2) Like four posters leaning on one example from 20 years ago when I have 5 since 2018? That is not the sick burn you think it is.

3) There are structural issues that will make state legislatures more likely to be Republican (big donors, gerrymandering both natural and unnatural, versus the more populist governor's seat) so the GOP gets lots more bites at the apple here.
Maybe the Dems would be as bad, but that isn't how the numbers play so we will probably never know.

4) This is part of a larger trend of the GOP doing institutional stuff to settle into minority rule at the state leg level, as their ability to hold majorities continues to wither.
This is new and bad.

[Brett Bellmore]

"3) There are structural issues that will make state legislatures more likely to be Republican"

Mostly asymmetric political geography; Over a large range of population densities, Republicans typically get 55-65% of the vote, exceeding that only in areas that are practically empty. Whereas at high population densities, Democrats will pull in 70, 80, 90, or yes, even 100% of the vote.

The result is that unless you engage in a wild degree of pro-Democrat gerrymandering, Democrats waste a lot of votes in winner take all elections.

That's why Democrats typically like to redefine "gerrymandering" to mean any map that doesn't try to replicate the results of proportional representation, rather than "drawing odd shaped districts to achieve particular political outcomes"

[Sarcastr0]

So you agree with me on the structural issues.

OK then.

The rest is collateral.

[Lee Moore]

So you agree with me on the structural issues.

Er, yes. But no. He (and I) agree that asymmetric political geography tends to lead to a natural D disadvantage from clustering. But that is a natural feature of reality, it's not gerrymandering. In order to produce a proportional result, it is necessary to actively gerrymander. No doubt the Rs try to add to their natural geographical advantages, but any kind of ban on gerrymandering would leave the natural D disadvantages in place. Unless you redefine gerrymandering to get rid of the D disadvantage as "not gerrymandering." Squiggly lines for me but not for thee.

And as to the implications, I think it's you agreeing with Brett. For any given level of political cynicism, the number of examples of political cynicism being deployed by each team will be proportional to the number of places that each team controls.

[Sarcastr0]

You and Brett are stuck on this gerrymandering shit.

Once you acknowledge the asymmetry exists, then you see the GOP motives to do this, and how it's a low-key attack on our federated republic.

[Lee Moore]

Well the guy who first mentioned the gerrymandering shit was...you !

And since you also weaselled in the oxymoronic concept of "natural gerrymandering", you have to expect some comeback.

Gerrymandering is unnatural (hence the Gerry, you need someone to do it) and involves squiggly lines (hence the mandering.)

No point throwing a hissy fit every time we spot one of your redefinitions.

[Sam Bankman-Fried]

Republicans would appoint Legs Spread Loeffler to permanent Vice-Senator…because she does what’s necessary to give head…I mean get ahead. 😉

[Bob from Ohio]

"In 2004, Senator John Kerry was running for President, and there was a Republican Governor, Mitt Romney. The Democratic legislature stripped the Governor's power to make a temporary appointment"

[Area Man]

Yeah, but that was totes different because reasons.

[Kazinski]

Yet the precedent Josh noted was a democratic legislature stripping Mitt Romney's power to make Senate appointments in Massachusetts.

Seems like more of a feature of having a supermajority of one party in the legislature and a governor of another party.

You know who I blame? The people. They did that.

[Sarcastr0]

OK so how many people are going to bring up MA in 2004?

That should tell y'all something about how many examples you have, and how old and dusty it is.

[Lee Moore]

So what's the statute of limitations on this sort of thing then ?

I'm interested in when Dem moaning about poor old Merrick Garland is going to expire.

[Sarcastr0]

My thesis has a timebox in it, that this trend of consolidating power at state legislatures and insulating them from public accountability started in 2016/2018 and is largely, if not exclusively a GOP state thing.

Your whole independent state legislature thing would supercharge this trend, BTW.

If you want to come at my thesis with 2004 stuff you need to explain why it is relevant.

I’m interested in when Dem moaning about poor old Merrick Garland is going to expire.
A telling attempt to deflect off-topic.

[Absaroka]

Well, a thesis of 'inflation/crime is up/down over this specific small time window' isn't all that interesting.

I get that every long term trend starts as a short term trend, but a lot of short term trends end up being just that.

[Sarcastr0]

This isn't stats. It's events. There is some overlap to the shenanigans that can be pulled, but your analogy isn't right.

The time window is the rise of MAGA within the GOP, not some randomly chosen window.

[Lee Moore]

The topic you raised was "omigod this is old" which deflected from the point that the Dems did this before, twice, and you are starting the clock from the response.

So, when are you guys going to stop whining about Garland ? I have good money to lay down that you'll still be whining about it when they dig you in - ie the answer is "never."

But surprise me. You're going to forgive and forget it - when ?

[Sarcastr0]

1) It is old. Politics is not the same.
2) There is an event I'm tracking.
3) Quit deflecting about some other thing. It makes you look like either a coward or a myopic who thinks all subjects are the same.

[Lee Moore]

I understand. 15 years is old (the reflip in Massachussetts was 2009.) But 8 years is young (2016.) Whatev.

Yup, you're tracking an event that causes you pain. And ignoring precedent that causes you no pain. I get it. He jests at scars - so long as they're other people's.

Deflection is when we don't stick to your agenda, and raise inconvenient examples of your team doing what you're now complaining about. First. Got it.

You're so one eyed it's not even Nelsonesque. it's the full Cyclops.

[Kazinski]

Its not a big universe of attempts by either party for the simple reason that it requires an overwhelming majority by one party in the state legislature, and a governor of the opposite party.

That situation is happening more frequently in solid Red States run that sometimes elect Democratic governors, and that's the reason, not that Republicans are inherently evil and Democrats are noble defenders of the Democratic norm.

[apedad]

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

I think the unwritten part is, " . . . using their approved legislative process."

Remember, at the federal level (not sure of Kentucky), the veto clause falls under Article 1 (sect 7), so it IS part of the legislative process.

[Lee Moore]

I think the unwritten part is, ” . . . using their approved legislative process.”

Yup, and the thing about the unwritten bits of laws is that ….. they’re not there. Or if you want to be exteremely generous, if you’re relying on the bits of the law that are absent, and arguing that they should take precedence over the bits that are present, you need some friendly judges.

Remember, at the federal level (not sure of Kentucky), the veto clause falls under Article 1 (sect 7), so it IS part of the legislative process.

“so” is doing way too much work here. Article 1 is about the Congress, which is the legislative branch to be sure, but it does other things – like impeachment, trying impeachment. Even in Section 7 which is primarily about Bills, we have orders, resolutions and votes being covered.

Various powers are sprinkled between Articles 1 and 2 (and elsewhere) largely on the basis on common sense – there’s not a strict division between leglslation and execution. For example Article 2 allows the President to make treaties subject to Senate approval, which then become part of the supreme Law of the Land under Article VI. No role for the poor old Article 1 House there.

And as I mention elsewhere the President is not given any role in actually legislating. He is given the (conditional) power to prevent Congress exercising its legislative power. The legislating is all done by Congress.

[Noscitur a sociis]

This argument seems pretty silly. There are lots of constitutional provisions that appear to work similarly. For instance, Article II, Section 2 says thatt "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Does that mean if the president can't veto a bill that would remove such vesting?

[F.D. Wolf]

I think the key qualifier in your example is the phrase "by Law", as the Constitution makes clear what a "law" is, including the role of a presidential veto. By contrast, Section 3 of the 14th Amendment provides, "But Congress may by a vote of two-thirds of each House, remove such disability." I don't think anyone would suggest this provision was meant to be subject to a presidential veto.

And, of course, the federal Constitution created the Congress, not the state legislatures which already existed, and each state was free to adopt its own method of lawmaking, which might not exactly mirror the federal lawmaking process.

[Lee Moore]

1. I agree with you on the "by law" thing - those who drafted the constitution knew how to distinguish between things done 'by law" and things done by "the legislature" - and proceeded so to distinguish them.

2. But I disagree on your analysis of Section 3 of 14A. The Presentment Clause in Article 1 Section 7 does not just apply to "laws" it also applies to "Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary..."

It's hard to see how a vote in each chamber to remove a 14A Section 3 disability would fall outside this requirement.

In practice of course it wouldn't matter, as if you've got two-thirds of each chamber on your side, you can override the President's veto anyway.

[Kazinski]

I think it depends also on the state constitution. But I agree, it should be assumed that when the Constitution says the Congress, or the legislature 'may' or 'shall' then the normal functioning rules of the legislature still applies and that includes veto's.

But if perhaps a court tried to usurp the legislature's power that was granted then that would violate the original understanding when the Constitution was written.

As an (farfetched) say the legislature of NC drew new congressional maps, and the state supreme Court not only struck the legislature's maps, but ordered that the version the NCSC favored would be used, then I do think that would violate the original understanding of what Congress expected the normal functioning of the legislature would be. Courts can set aside or enjoin acts of the legislature, but not usurp their functions, and substitute their own preferences.

[Lee Moore]

I disagree (with the first paragraph, not the last two.) FD Wolf explains it succinctly. Nocscitur picked an illustration which uses the phrase “by law”. The federal constitution prescribes the process by which Congress makes law, and that expressly includes the possibility of Presidential veto. “By law” and “by the legislature” are different concepts.

Note that strictly the President has no lawmaking powers himself, he is given the power to prevent Congress making law. Congress makes the law, when it is permitted so to do. He’s just a blocker, not a runner or a receiver.

By way of analogy, if you are in the building business you may be subject to various government permitting and zoning and other rules restricting you as to where and what you can build, what time of day you can build, and what materials you might use. That does not mean that you and the government are engaged jointly in the building trade. You are in the building trade. The government is not. But it has the power to stop you building, if you don’t do it the way the government wants you to.

[Dilan Esper]

I think it depends also on the state constitution. But I agree, it should be assumed that when the Constitution says the Congress, or the legislature ‘may’ or ‘shall’ then the normal functioning rules of the legislature still applies and that includes veto’s.

I think this is the key point. The ISL theory is too esoteric, and that's why the Court eventually stepped away from it in Moore after flirting with it in Bush v. Palm Beach County. The drafters of the Constitution knew how state laws were made. They knew about gubernatorial vetoes and state court systems. Maybe they didn't know about referenda, if you really want to draw a distinction there (though I don't think you should).

Given that, there's no reason absent a clear statement to interpret grants to the "Legislature" as circumventing the normal state lawmaking process including governor's vetoes.

[Kazinski]

Moore v. Harper made all that clear: vetos and state court review are part of the normal lawmaking process.

But there was one important proviso in the majority opinion:
"state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections."

That obviously refers to "remedial" map imposed by the state court in preference to the legislature's map.

That same line was there in Bush v Gore, and I don't think they stepped back at all: Courts have the power to strike the legislature's act using using the normal state procedures, but can not cross the line to "arrogate to themselves the power vested in state legislatures to regulate federal elections", as the Florida Supreme court did when it said state law ran afoul of the state constitution and crafted its own remedy.

They can forbid, but they can't compel, at least when it comes to federal elections.

[Ridgeway]

I don't know why is is so hard for some people to understand that "by the legislature of the state" is just another way of saying "in accordance with applicable state law."

Any other interpretation leads to predictable absurd results.

If judicial review is disallowed, the legislature is effectively unfettered by the constitution? So it is free to say that the new appointee must be of the same race and gender as the previous Senator?

Hell, why not invoke the Eastman doctrine and have a couple of guys put on "State Legislator" sashes and start sending new rules to the Governor. Who's to say who the "Legislature" is anyway?

[Rev. Arthur L. Kirkland]

John Eastman was indicted again. Yesterday, in Nevada, I believe.

It has been reported that Donald Trump stiffed Eastman for legal fees. That won't be a continuing problem, though, because Eastman is ineligible to practice law while awaiting final resolution of the formal recommendation that he be disbarred.

Sometimes, bad things happen to un-American insurrectionists.

[Lee Moore]

I think one reason why it's hard is that .... the words are different ! If they meant “in accordance with applicable state law" there was an easy way to make that clear - they could have said that. Whereas what they actually said was “by the legislature of the state” - which identifies a particular institution of each state. So the natural reading is the opposite of what Moore v Harper found. But judges strain to find the answers they like - what's new ?

Anyway taking Moore v Harper as good law, I don't see that Josh's puzzle is very hard. If "legislature' is to be taken to mean "the whole lawmaking and law interpreting apparatus of the state" then it's easy enough for "executive" to mean "the whole law executing and interpreting apparatus of the state" which would drag in state constitutional and statutory powers granted to, and constraints on, the Governor, including the fancies of the state supreme court on these matters.

Thus if the state constitution allows the Governor a veto and it's not overridden then he's still got the powers the federal constitution grants him...subject to the constraints that he doesn't manage to veto - ie having to appoint from a list provided by the legislature. And now they've taken the power away altogether cos his veto was overridden.

I presume the legislature (by which I mean actual legislature) was nervous that a federal court might rule their previous restriction on the Governor's choice (federally) unconstitutional and that the Ds would therefore get a crucial extra Senator while the case wound its way up to SCOTUS. Or maybe they were concerned that the D controlled Senate would seat the Governor's choice without waiting for a federal court ruling.

But the "logic "of Moore v Harper is that the executive means the executive acting in accordance with state law, so if the legislature (overriding a veto) had claimed the power to restrict the Governor's choice to a list of one, that should pass federal constitutional muster.

[Dilan Esper]

Let's say a state passes a big omnibus electoral procedure bill and the governor vetoes it. Does that mean that the state must now have two separate elections-- an election that follows the bill's procedure for federal elections and a separate election that follows the state's old procedure for state elections?

This is ridiculous. You shouldn't stick to blind textualism in the face of complete absurdity.

[Lee Moore]

Can you clarify your horrible, please ? Are both elections for the same positions, or are you talking about one election for federal positions, and one for state positions ?

For the avoidance of doubt, if your horrible is the latter, I can’t imagine what’s horrible about it. A state legislature could perfectly well, say, allow mail in votes for federal elections, but not for state elections, and have both sets of rules passed without any veto. Would that be ridiculous ?

[Lee Moore]

I would add that it is already the case that some states do not hold their state elections on the same days as they hold their federal elections, and they certainly don't use the same districts (except for statewide elections.) Why would there be any difficulty in having different rules for any other parts of the election processes?

[Dilan Esper]

I mean, sure, but I can clarify my horrible in all sorts of ways. E.g., let's say they pass a law on felons voting or not voting. (That's the kind of thing that might be vetoed.) So now they have to have 2 sets of procedures and 2 sets of everything and keep track of who can and can't vote in the election, just so you can feel purist about "legislature" in the Constitution?

Don't interpret the Constitution to require dumb stuff.

[Lee Moore]

I now understand your horrible. It's just - this can't be right as it allows stuff that seems dumb to me. I'm not sure that's really a workable principle of constitutional interpretation.

1. As I tried to explain, your horrible is perfectly achievable under your own preferred constitutional interpretation. The state, using its constitution and Governor's veto etc, as you would like them to, is perfectly capable of coming up with different electoral laws for state and federal elections. The possibility of the horrible does not depend on the constitutional interpretation you disapprove of. Hence the possibility of this horrible arising can hardly be the decisive reason to pick one interpretation over another.

2. It is perfectly possible for the state legislature to want different rules for reasons even more substantial than purism about interpretation. For example the state legislature may think felon voting is a really really bad idea. But a federal court may rule that it is required for federal elections. The state legislature may rationally believe that it's better to keep state elections without felon voting (since it's such a bad idea) even if they're forced by the court to accept it for federal voting. Even if it means two electoral registers. That's not purist narcissism, it's a practical judgement that one thing is better than another.

3. This is even more obvious with redistricting. State elections and federal elections do not use the same districts. Hence even if the entire electoral machinery is the same for federal and state elections, there's no reason why federal districts need to be specified in the same law as state districts.

[Lee Moore]

If judicial review is disallowed, the legislature is effectively unfettered by the constitution? So it is free to say that the new appointee must be of the same race and gender as the previous Senator?

Hold on a minute there, Butch ! What if the state constitution requires that the new appointee be of the same race and gender as the previous Senator ? Your horrible does not show that the state legislature must be subordinated to the state constitution in the exercise of its federal power, because it might otherwise do something horrible. Because exactly the same horrible could arise from the state constitution and state courts.

Back on Planet Earth, the federal constitution may – or may not – restrict (race, sex etc wise) how the state legislature provides for the filling of temporary appointments, but any such restrictions are subject to judicial review and can be tested in federal court. No role for state courts is required for such testing.

The state body that makes the choice is completely irrelevant to whether the choice made is horrible, or whether the choice can escape federal judicial review.

[Lee Moore]

So it is free to say that the new appointee must be of the same race and gender as the previous Senator?

How would this be any more "absurd" than the President insisting that he would insist upon appointing a black female to the Supreme Court, and then following through at the first opportunity ?

Who’s to say who the “Legislature” is anyway?

Well, there's the rub. According to the Supreme Court, it's NOT the body so described in the state constitution. Who'da thunk it ?

[F.D. Wolf]

The Supreme Court has sometimes held that the word "legislature" in the Constitution means "just the legislature", and sometimes held that the word "legislature" means "the general legislative process", which might include such things as the governor's veto. The key factor seems to be whether the legislature is acting in its "core lawmaking" capacity or in another capacity (such as when it elected Senators before the Seventeenth Amendment or when it is ratifying amendments to the Constitution under Article V.)

When acting pursuant to its "core lawmaking" capacity, "legislature" means "general legislative process", but when it acts in its other capacities, "legislature" means "just the legislature". Under this formulation, it would seem that the appointment of U.S. Senators would not be a "core lawmaking" function, and that the purported veto would not have been effective in this case in the event that it had not been overridden.

[Noscitur a sociis]

Passing and repealing laws isn't a "core lawmaking" function?

What is, then?

[F.D. Wolf]

A state legislature acts in its "core lawmaking" functions when it acts under its own inherent authority as provided by its state constitution. Here it is acting pursuant to a provision of the federal constitution, namely the Seventeenth Amendment.

[Lee Moore]

But that's not the conclusion in Moore v Harper. There the state legislature was acting under its authority in Article 1 of the federal constitution to choose the time, place, manner etc of elections to Congress. But SCOTUS decided that 'legislature" meant the whole panjandrum of legislatively connected activity, not the actual legislature.

[F.D. Wolf]

The Court held there, as it had previously in Arizona State Legislature v. Arizona Independent Redistricting Commission (2013) that redistricting falls under "core lawmaking", so the "legislature means general legislative process" rule applied. I disagree, but I didn't have a vote.

Before the adoption of the Seventeenth Amendment in 1913, state legislatures elected U.S. Senators. Neither before or during the popular movement for the popular election of Senators, did anyone ever suggest "legislature" meant "general legislative process". Otherwise, states could have merely changed their laws to allow for the popular election of Senators. (Many states adopted pseudo-popular elections of Senators, but these were essentially advisory, and not legally binding on the state legislatures, which ultimately still had to elect the Senators). Nor would anyone have suggested a governor could "veto" a legislature's choice. But here the state legislatures were acting in an "elective" capacity, not a "lawmaking" capacity, so "legislature" meant "just the legislature".

Likewise, in Hawke v. Smith (1920), the Court held that, when it came to Article V ratification of amendments, that "legislature means legislature", so that a state constitutional provision that allowed a popular referendum to override the legislature's ratification of the 18th Amendment was of no effect.

Again, I am not offering my opinion, but my interpretation of Court precedent as explicated by Justice Ginsberg in Arizona Independent Redistricting Commission. In point of fact, I find the "core lawmaking"/"other capacity" dichotomy quite dumb, and that "legislature", as used in the original Constitution, should be assigned a consistent meaning throughout, namely that "legislature means legislature".

[Darth Buckeye]

At some point "legislature" will just mean the US Supreme Court.

[F.D. Wolf]

Kentucky has a Democrat governor, but a Republican super-majority in both chambers of the state legislature and two Republican U.S. Senators (one of whom is 82 and doesn't appear to be in the greatest physical or mental health.) The prior law required that the governor's temporary appointment be from the same party as the previous Senator, chosen from a list of three names submitted by that party's state executive committee. The governor has hinted he might ignore the law and appoint a Senator of his choosing, which would have precipitated a constitutional crisis, which this new law averts.

[theobromophile]

The great irony is that Beshear's posturing about how the old law is unconstitutional is what got us here: the governor lacks any power at all.

Interesting move, given that the legislature was Dem from 90 years, right up until 2016. It wasn't even all that long ago. The Kentucky GOP sees pretty confident in retaining that power, despite their inability to get Amendment 2 or Cameron across the finish line.

[Sam Bankman-Fried]

His support for Obamacare got him elected…Kentuckians are just under the impression that it is Byrdcare like West Virginia got. 😉

[theobromophile]

In the 2023 race, only 5% of voters said that health care was the most important issue for Gubernatorial candidates:

https://www.dataforprogress.org/blog/2023/11/6/beshear-up-2-over-cameron-in-close-kentucky-governor-race

The 2019 race was different, and Bevin had a number of um personality quirks, but I specifically referenced Cameron and not Bevin.

[Brett Bellmore]

Not necessarily. How often does this come up? Not terribly often. So, it's a one time gain, and maybe 50-50 odds about which way it goes afterwards.

[Lee Moore]

Yes, his mistake was in telegraphing his lack of enthusiasm for the old law restricting his choice.

Proper hardball would have been to keep quiet, leaving the GOP legislature believing he’d go along with the restricted choice, and then when given the opportunity appoint a D and then justify himself by saying that in his opinion the restricted choice law was unconstitutional.

The D controlled Senate would have seated his choice instantly making whatever might be the eventual opinions of the Kentucky and federal courts on the matter, irrelevant.

[Hugo S. Cunningham]

The best solution would be to empower each Senator to file a political "will" specifying (1a) a list of people (ranked) who would temporarily replace them if they vacate their seat early, or, if they did not want to do that, (1b) the person who would appoint their temporary successor -- governor? leader of majority or minority caucus in State senate?
(2) Individual States could decide (as they do now) whether these temporary appointments should last to the next regular biennial election, or for a shorter period until a special election.

[Brett Bellmore]

Like I said above, "Vice-Senators". It should probably be normal for most offices that when you run, you designate somebody to finish out your term if you can't.

But it likely requires constitutional amendments to do this.

[Lee Moore]

Well confining the matter to replacement Senators I can't see what would require a constitutional amendment.

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.

So the legislature can empower the Governor to make a temporary appointment of the person named on the dead/retiring Senator's "Form 217-3B", and so the Governor is duly empowered.

Obviousy the legislature doesn't have to do that, but it can.

That leaves the questions of whether the legislature can restrict the Governor's choice in this way - to which the answer is "whyever not ?" and whether "empower" can encompass "require". If Form 217-3B and its implications are suitably expressed in a state law, I don't see why the Governor should not be required as well as empowered.

[Kazinski]

That seems legal to me.

Of course the most recent law, where the legislature presents a list to the governor seems fine too, the legislature usually fairly represents the "sense of the state", however dysfunctional that may be.

[Lee Moore]

Yup. Though as mentioned elsewhere it doesn’t really matter whether the list was constitutional because Beshear could happily have ignored it and the D majority Senate would have seated his appointee regardless.

There’s law and there’s boots on the ground.