With the death of U.S. senator Frank Lautenberg, New Jersey Governor Chris Christie has an unusual legal situation to deal with when it comes to naming Lautenberg’s successor.
Lautenberg, 89, died on Monday after a bout with viral pneumonia. He served five terms in the Senate and was its last World War II veteran. Lautenberg said in February that he wasn’t running for re-election in November 2014.
The U.S. Constitution has a tightly defined procedure for selecting a replacement for the House of Representatives, but when it comes to the Senate, it’s up to the states to define the procedure—thanks to the 17th Amendment.
The Founders made it clear that special elections would be held to replace a member of the House; the state’s governor can’t simply appoint a temporary replacement. As Article I, Section 2 of the Constitution says: “When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.”
As for replacing a senator, the original, unamended Constitution gave that power to the state legislatures, because they elected all the senators. If the state legislature was adjourned or in recess when a senator died or resigned, the governor could name a temporary senator. Then, as soon as the legislature met again, it would choose a new senator.
The 17th Amendment, which went into effect in 1913, changed all that. First, instead of being chosen by state legislatures, senators would be elected directly by the people. Second, it made the states responsible for agreeing on a process to replace a senator.
So a governor and state legislature must agree on granting a governor the power to name a new senator until elections happen.
According to the National Conference of State Legislatures, New Jersey is one of 36 states were Senate vacancies are filled by an appointment from the governor until an election can be held.
Christie’s problem is conflicting state laws that say a special election could be held in November 2013 or in November 2014.
That’s because of an apparent error in a 2011 New Jersey election law that is definitely conflicting—and confusing.
In New Jersey Title 19, Elections, part of the code called “Senate vacancies” says that if the Senate vacancy happens within 70 days of a general election, the election to name a new senator is held the following year.
But in a separate paragraph, called “Congressional vacancies,” if the Senate vacancy happens within 70 days of a primary election, the election is held the following year, too.
New Jersey’s primary is scheduled for Tuesday—Lautenberg passed away one day before it. If the “Senate vacancies” law is accurate, the election would be in November 2013. If the “Congressional vacancies” is accurate, then the election is in November 2014.
Complicating matters is that both statutes allow Governor Christie to call a special election to name the new senator at a date of his choosing.
That would allow Christie to appoint an acting senator until November 2013, November 2014, or whenever he calls a special election before November 2014. Of course, several of those scenarios could be affected by lawsuits involving that confusing election statute.
So far, the state’s Democratic leader says that the election should be held this November.
Democratic State Chairman John Wisniewski told NJ.com that the election should happen this November.
“No matter what happens, there will be an election in 2014,” Wisniewski said. “But what I believe as chair of the Democratic Party is there will be a special election in 2013.”
NJ.com said it has seen an opinion from New Jersey’s Office of Legislative Services that says any Christie appointee would serve until November 2014.
The political website The Hill says that Democratic sources said a lawsuit is possible if Christie calls for the special election in 2014 instead of 2013.
On the national political scene, the addition of an extra Republican senator, with the Senate needing a 60-vote majority to get by various filibuster measures, could be a compelling factor.
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