The Text and the Courts: Three Paragraphs, Four Cases and Fifty Vacancy Laws

Lesson 5 got the amendment into the Constitution. This lesson reads it. The reading goes in the order a lawyer would use: the words, then what they replaced, then what courts have done with them, then what the states have done under them. It ends with a table of all fifty states' vacancy laws, verified against the National Conference of State Legislatures' summary as of July 2026, because the vacancy clause is the one part of the amendment a reader is likely to need on a deadline.

Three paragraphs against the original

The joint resolution at 37 Stat. 646 did not add a free-standing provision. It replaced the first paragraph of Article I, Section 3 and the vacancy portion of the second paragraph. The table sets the two texts side by side, using the National Archives' transcription for the original and the Constitution Annotated's for the amendment.

Subject	Original Article I, Section 3 (1787)	Seventeenth Amendment (1913)	What changed
Who chooses	"two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote"	"two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote"	"chosen by the Legislature" became "elected by the people." Two per state, six years and one vote each stayed
Who votes	No provision (legislators voted)	"The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures"	New. Borrowed word for word from Article I, Section 2, clause 1, the House rule
Vacancies: the rule	"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"	"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"	The legislature's power to fill vacancies is gone. The governor must call an election, as for House vacancies under Article I, Section 2, clause 4
Vacancies: the exception	Appointment allowed only during a legislative recess and only until the legislature next met	"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"	Appointment now depends on a state statute, lasts until an election, and the legislature sets the election's timing and manner
Transition	None	"This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution"	New. Protected every sitting senator's term
Classes and rotation	Article I, Section 3, clause 2 (three classes)	Untouched	One third of the Senate is still elected every two years
Elections Clause	Article I, Section 4: states prescribe times, places and manner; Congress may make or alter such regulations "except as to the Places of chusing Senators"	Untouched (the race rider that would have changed it failed; see lesson 4)	Congress kept its power over Senate elections

Paragraph one: election and the franchise

"Elected by the people thereof" is the operative change and it has needed little interpretation. The qualification clause has needed more. By tying the Senate franchise to the state's rule for its own larger chamber, the amendment left each state in control of who votes for senator, exactly as Article I, Section 2 had left each state in control of who votes for representative. A state could not set one rule for the legislature and a stricter one for the Senate. And once a state qualified a voter for its lower house, that voter had a federal constitutional right to vote for senator, not just a state-law privilege. The Constitution Annotated's doctrine essay records that courts said so almost at once: in United States v. Aczel (D. Ind. 1915), a federal court held that a qualified person's right to vote for senator rests on the Constitution as well as on state law, citing Ex parte Yarbrough (1884).

That reading had teeth. In Chapman v. King, 154 F.2d 460 (5th Cir. 1946), federal courts held that local party officials who, acting under a state party executive committee's rules, barred a Black citizen from voting in a United States Senate primary because of his race violated the Seventeenth Amendment. The Supreme Court declined to review. The case is the direct descendant of the fight over the race rider in lesson 4: because the amendment left the franchise rule federal and left Congress's power intact, a party's white primary for a Senate seat could be reached under the amendment itself. In Forssenius v. Harman, 235 F. Supp. 66 (E.D. Va. 1964), a three-judge court held that Virginia's requirement that voters in federal elections either pay the poll tax or file a certificate of residence was an additional voting qualification forbidden by the Seventeenth Amendment and Article I, Section 2; the Supreme Court affirmed on other grounds in 1965. On the other side of the ledger, MacDougall v. Green, 335 U.S. 281 (1948), upheld an Illinois law requiring 25,000 petition signatures spread across at least fifty counties to form a new party, against a Seventeenth Amendment challenge; the Court later overruled MacDougall in Moore v. Ogilvie (1969), on equal protection grounds.

The qualification clause does not freeze the franchise. The Fifteenth Amendment (race), the Nineteenth (sex), the Twenty-fourth (poll taxes in federal elections) and the Twenty-sixth (age 18) all limit what qualifications a state may impose for its most numerous branch, and so for the Senate. The Voting Rights Act does the same by statute, under powers the amendment left in place.

Paragraph two: the writ and the proviso

Read the second paragraph as two sentences joined by a colon. The first is a command: "the executive authority of such State shall issue writs of election to fill such vacancies." The second is an exception: "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."

The features of the exception that have mattered in court start with the grant itself. The appointment power does not exist unless the legislature confers it; a state with no statute has no appointments, which is the situation in Kentucky, North Dakota, Rhode Island and Wisconsin today. The appointment is "temporary," which every court has read to mean it ends when the election fills the seat, though none has read it to set a maximum length. The appointment lasts "until the people fill the vacancies by election," so an election is contemplated in every case. And the election is held "as the legislature may direct," the five words on which Valenti, Trinsey and Judge v. Quinn all turn. Judge Frankel, dissenting in Valenti, called them a "tag-end phrase" the majority had bloated; the majorities in all three cases treated them as a real grant of discretion over timing and procedure.

Paragraph three: the savings clause

The savings clause did its work between 1913 and 1919 and has had no occasion since. Its one lasting lesson is about the phrase "chosen before it becomes valid." The amendment became valid when the thirty-sixth state ratified on April 8, 1913, as the official ratification note in the House Manual confirms, not when Secretary Bryan proclaimed it on May 31. Senators chosen by their legislatures in January 1913, Borah among them, were protected; a senator chosen by a legislature after April 8 would not have been. Georgia shows the line in practice. Augustus Bacon's term expired on March 3, 1913 with no successor chosen, because Georgia's legislature was not due to meet until June; the Senate's list of Georgia senators records that the governor appointed him for the interim, as had happened in 1907. Once the amendment took effect on April 8, the seat was filled the new way, by a popular election on July 15, 1913, which Bacon won unopposed (see lesson 5).

The cases

Four decisions carry most of the law of the vacancy clause. Three are from lower federal courts, one is from the Supreme Court by analogy, and the Supreme Court has never written a full opinion on the clause itself. Each is read here from the opinion.

Valenti v. Rockefeller (three-judge court, 1968; affirmed 1969)

Senator Robert F. Kennedy of New York died on June 6, 1968. Under New York Election Law section 296 as it then stood, a Senate vacancy could be filled only at a general election in an even-numbered year, and only if the vacancy arose at least 60 days before that year's spring primary, which in 1968 fell on June 18. Kennedy's death came too late. The election to fill the seat would be held in November 1970, about 29 months after the vacancy, and the governor's appointee would serve until December 1, 1970. Governor Nelson Rockefeller made the appointment in September 1968. Three suits by New York voters, one in the Western District (Valenti) and two in the Southern District, asked for an order that the seat be filled at the November 1968 election. The courts convened identical three-judge panels, Chief Judge Lumbard of the Second Circuit, Chief Judge Henderson and District Judge Frankel, and heard argument on August 7, 1968.

On November 12, 1968 the majority, in an opinion by Lumbard, upheld the statute. "We hold that the provisions of New York Election Law § 296 do not exceed the discretion conferred on the states by the Seventeenth Amendment with respect to the timing of vacancy elections and the procedures to be used in selecting candidates for such elections." The court found "substantial state interests" in holding vacancy elections only with regular congressional elections and in selecting candidates through the state's primary system, and it was "strongly influenced by the fact that from the ratification of the Seventeenth Amendment in 1913 down to the present day most state legislatures have interpreted its provisions as authorizing the enactment of vacancy election statutes very similar to the New York law." The opinion traced New York's own statutes: a 1913 law that would have filled the seat at the next November election at least 30 days out, a 1947 law tied to a 60-day interval before the September primary, and the 1951 law that confined vacancy elections to even-numbered years. Under either of the first two, the court noted, Kennedy's seat would have been filled in 1968.

Frankel dissented at length. The amendment's "loud, clear, and supreme command," he wrote, "is that Senators are to be 'elected by the people.'" The proviso was "a stopgap." Allowing an appointee to occupy "nearly half the senatorial term" was "an unprecedented extension of the 'temporary' appointive power," decided "in what appears to be the first judicial scrutiny of the proviso." He reviewed the original Constitution's recess appointment clause, under which no appointee before 1814 had served longer than a year, and argued that the amendment could not have meant to allow longer appointments to postpone the people's choice than the original had allowed to postpone the legislature's. The Supreme Court summarily affirmed on January 20, 1969, 393 U.S. 405, without opinion. The Seventh Circuit later noted that the plaintiffs in Judge v. Quinn argued the affirmance rested on mootness and carried no precedential force, and that the Supreme Court had nonetheless discussed Valenti approvingly in Rodriguez.

By the Seventh Circuit's account in Judge v. Quinn, no election to fill the Kennedy vacancy was ever held; the appointee, Charles Goodell, served until the November 1970 election chose a senator for the next full term, and the court counted the vacancy among the 27 since 1913 in which the election the amendment contemplates never occurred. The same opinion records that Governor Rockefeller had issued a writ for the November 1970 election covering the few weeks left in the unexpired term (December 1, 1970 to January 3, 1971), and the Senate's list of appointed senators treats Goodell as defeated on November 3, 1970, so whether the 1970 vote counts as the vacancy election depends on who is counting.

Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982)

Rodriguez is not a Senate case. A member of the Puerto Rico House of Representatives died in January 1981, and Puerto Rico's law, as the Puerto Rico Supreme Court read it, let the departed member's party name a replacement, with a by-election only if the party failed to act within 60 days. Voters in the district argued that the Constitution required an election open to all. On June 7, 1982 a unanimous Supreme Court, in an opinion by Chief Justice Burger, upheld the party-appointment system. The case matters here because the Court reasoned from the Seventeenth Amendment by analogy. It quoted the proviso and observed that the amendment permits a state, if it chooses, to forgo a special election for a Senate vacancy in favor of a temporary appointment, which suggested that states have at least as much latitude for their own legislative vacancies. And it cited Valenti, describing that case as having "sustained the authority of the Governor of New York" to fill a Senate vacancy by an appointment lasting more than 29 months, and finding nothing arbitrary in such interim appointments. The Court's test, whether the interim appointment system "plainly serves the legitimate purpose" of filling vacancies promptly, is the one the Third Circuit later applied in Trinsey, quoting it as whether the system "plainly serves [a] legitimate purpose."

Trinsey v. Pennsylvania, 941 F.2d 224 (3d Cir. 1991)

Senator H. John Heinz III of Pennsylvania died in an airplane accident on April 4, 1991. Pennsylvania's statute, 25 Pa. Stat. section 2776, required a special election at the next general or municipal election at least 90 days after the vacancy; Governor Robert P. Casey issued a writ for November 5, 1991 and on May 13, 1991 appointed Harris Wofford to serve until then. The statute let the major parties choose their nominees under their own party rules, by nomination certificates, with no primary. John S. Trinsey, Jr., who wanted to run and represented himself, sued on April 29, 1991, arguing that the Seventeenth and Fourteenth Amendments required a primary. The district court agreed, held the statute unconstitutional under strict scrutiny, and upheld the Wofford appointment.

The Third Circuit reversed on August 6, 1991, in an opinion by Chief Judge Sloviter joined by Judges Greenberg and Seitz. The amendment does not require a primary; its legislative history does not support reading one in; and the Supreme Court cases on primaries (United States v. Classic, Tashjian) concerned primaries states had chosen to hold, not a duty to hold them. The vacancy proviso, the court said, "has been found to confer 'a reasonable discretion upon the states concerning the timing and manner of conducting vacancy elections,'" quoting Valenti, and it relied on Rodriguez as well. Because no fundamental right was infringed, strict scrutiny did not apply; under the Rodriguez standard, Pennsylvania's system "plainly serves a legitimate purpose." The court noted that Pennsylvania's 1913 statute had required primaries for vacancy elections and that the legislature had changed that in 1937, and treated the change as a permissible policy choice. On equal protection, the court found no unequal treatment of voters, since no one voted in a vacancy primary, and declined to decide whether a party's internal nomination is state action. The court appointed a law professor, Laura E. Little, as amicus to argue Trinsey's side, which is a detail worth noticing: the losing argument got a professional advocate, and still lost.

Judge v. Quinn, 612 F.3d 537 (7th Cir. 2010)

Barack Obama, the junior senator from Illinois, resigned his seat effective November 16, 2008 after winning the presidency, with two years and 48 days left in his term. On December 31, 2008, Governor Rod Blagojevich appointed Roland Burris, a former Illinois Attorney General, under a certificate saying the appointment would last "until the vacancy ... is filled by election as provided by law." Burris took the oath on January 15, 2009. The Illinois House had meanwhile impeached the governor on an article alleging abuse of his powers, "including his power to appoint a U.S. Senator"; the Illinois Senate convicted him on January 29, 2009, and Lieutenant Governor Pat Quinn became governor. Two Illinois voters, Gerald Judge and David Kindler, sued Governor Quinn, arguing that the Illinois statute, 10 ILCS 5/25-8, violated the Seventeenth Amendment by letting an appointee serve until "the next election of representatives in Congress" with no writ of election ever issued. The district court denied a preliminary injunction.

On June 16, 2010, in an opinion by Judge Wood, the Seventh Circuit affirmed the denial, and in doing so wrote the most detailed reading of the vacancy clause any court has produced. The holding on the merits: the second paragraph "imposes a duty on state executives to make sure that an election fills each vacancy; it obliges state legislatures to promulgate rules for vacancy elections; and it allows for temporary appointments until an election occurs." The governor "has a duty to issue a writ of election to fill the Obama vacancy." The writ "must include a date," and where the legislature has fixed the date, as Illinois had (November 2, 2010), the governor must use it; where the legislature leaves discretion, the governor may exercise it. The writ is not a formality: "it announces to the voters the time and place of the election; it sees that the electoral machinery is engaged; and it guarantees that an election for the vacancy will actually take place on the date directed." A state statute need not command the writ, because "the language of the Seventeenth Amendment is enough on its own to authorize the executive's action, no matter what state law says or does not say."

The court then did some counting. "Based on our review of U.S. Senate historical documents, there were 193 vacancies in the Senate between the ratification of the Seventeenth Amendment and the election of President Obama (excluding vacancies caused by a senator's leaving office after a successor is regularly elected)." Of those, "Twenty-seven ... were filled by an appointee who served the remainder of the senate term in question; in those 27 cases, the election to fill the senate vacancy that is required by the Seventeenth Amendment never took place." The Valenti vacancy was one. Without a writ, the court said, the Obama seat might be occupied during the lame-duck session from November 2, 2010 to January 3, 2011 "by a replacement senator who has not been elected by the people," a period it declined to call de minimis.

And then the plaintiffs lost anyway. They had abandoned their argument that the election must be held as soon as practicable, could not name a date they wanted, and at oral argument "were unable to suggest any irreparable harm." A preliminary injunction requires irreparable harm, so the denial stood. The court pointed out that the governor could still issue a writ for November 2, 2010 making clear that voters were choosing a replacement for the Obama seat as well as a senator for the next Congress, left the ballot question to the district court, and noted that "Governor Quinn might issue a writ of election tomorrow, or next week." The opinion's footnotes contain the best short bibliography of the amendment's legislative history in any judicial opinion, with page cites to the Congressional Record for every vote in lesson 4 and lesson 5.

Case	Court and date	Vacancy	Question	Holding
Valenti v. Rockefeller, 292 F. Supp. 851	Three-judge court (W.D.N.Y. and S.D.N.Y.), November 12, 1968; affirmed, 393 U.S. 405, January 20, 1969	Robert F. Kennedy (N.Y.), died June 6, 1968	May a state delay the vacancy election about 29 months and let an appointee serve meanwhile?	Yes. "As the legislature may direct" gives states discretion over timing and candidate selection; most states had similar laws since 1913. Frankel dissenting
Rodriguez v. Popular Democratic Party, 457 U.S. 1	Supreme Court, June 7, 1982 (Burger, C.J., unanimous)	Puerto Rico House seat, January 1981	May a party fill a legislative vacancy by appointment instead of an open election?	Yes. The Seventeenth Amendment's proviso shows states may forgo a special election for the Senate; Valenti cited with approval; the test is whether the system "plainly serves the legitimate purpose" of filling vacancies promptly
Trinsey v. Pennsylvania, 941 F.2d 224	Third Circuit, August 6, 1991 (Sloviter, C.J.)	H. John Heinz III (Pa.), died April 4, 1991	Does the amendment require a primary before a special election?	No. Candidate selection is within state discretion; strict scrutiny does not apply; Pennsylvania's party-nomination system upheld. Appointment of Harris Wofford upheld below and not disturbed
Judge v. Quinn, 612 F.3d 537	Seventh Circuit, June 16, 2010 (Wood, J.)	Barack Obama (Ill.), resigned November 16, 2008	Must the governor issue a writ of election, and may an appointee serve to the end of the term without one?	The governor has a duty to issue a writ with a date; appointments last only until the election; plaintiffs likely to succeed on that point but preliminary injunction denied for lack of irreparable harm. 27 of 193 vacancies since 1913 never saw an election

January 2009

Four Senate seats changed hands by appointment in six weeks around the 2009 inauguration, and the circumstances of the first one did more to put the vacancy clause in public view than any court case. The Senate's list of appointed senators records the dates.

State	Vacancy	Appointee (per the Senate's list)	Effective date	What the record shows
Illinois	Barack Obama resigned effective November 16, 2008 on election to the presidency	Roland Burris	January 12, 2009 (sworn January 15)	Appointed December 31, 2008 by Governor Blagojevich, who was impeached and, on January 29, 2009, convicted and removed on an article alleging abuse of his powers "including his power to appoint a U.S. Senator" (Judge v. Quinn). The vacancy election under Illinois law fell on November 2, 2010
Delaware	Joseph R. Biden Jr. resigned on election to the vice presidency	Ted Kaufman	January 15, 2009	Appointed by the governor to serve until the 2010 election; Kaufman did not seek the seat
Colorado	Ken Salazar resigned to become Secretary of the Interior	Michael F. Bennet	January 21, 2009	Appointed by the governor; elected to the seat in November 2010
New York	Hillary Clinton resigned January 21, 2009 to become Secretary of State, after Senate confirmation 94 to 2 (Senate New York timeline)	Kirsten E. Gillibrand	January 26, 2009 (appointed January 23, sworn January 27)	Appointed by the governor after a public selection process that lasted seven weeks; elected to the seat in November 2010

The Illinois appointment is the one the courts have described in detail, and the facts above for Illinois come from the Seventh Circuit's opinion. For the other three, this lesson relies on the Senate's list for the names and dates and describes the appointing governors by office. The Delaware and Colorado appointments drew comment because the appointees had not been candidates for anything; the New York selection drew comment for its length and publicity. None of the four was challenged in court on Seventeenth Amendment grounds except Illinois's.

The reaction in Congress was a proposed amendment. On January 29, 2009, the day Illinois removed its governor, Senator Russ Feingold of Wisconsin introduced S.J. Res. 7, joined by Senators Mark Begich of Alaska and John McCain of Arizona. Its first section would have provided that "No person shall be a Senator from a State unless such person has been elected by the people thereof" and would have required the state executive to issue writs of election to fill vacancies, with no proviso for appointments. Its second section was a savings clause modeled on the 1913 one, and it carried a seven-year ratification deadline. The resolution was referred to the Judiciary Committee. No amendment abolishing Senate appointments has been proposed to the states. Wisconsin, Feingold's state, is one of the four that allow no appointment under its own law, so his proposal would have extended his state's rule to the other 46.

Fifty states, four patterns

The National Conference of State Legislatures keeps the standard summary of how each state fills a Senate vacancy, and its page, last updated July 29, 2026, was read in full for this lesson. NCSL's own counts: 35 states hold the vacancy election at the next regularly scheduled general election and let the governor appoint in the meantime; 15 states require a separate special election, 11 of them with an interim appointment (Alabama, Alaska, Connecticut, Louisiana, Massachusetts, Mississippi, Oklahoma, Oregon, Texas, Vermont, Washington) and four without (Kentucky, North Dakota, Rhode Island, Wisconsin); Connecticut, Louisiana and Texas make the appointment conditional; and 11 states require the appointee to be of the same party as the departed senator (Arizona, Colorado, Hawaii, Kansas, Maryland, Montana, Nevada, North Carolina, Utah, West Virginia, Wyoming), with Kansas and Utah having the governor choose from a three-name list supplied through the legislature and Montana from a three-name list supplied by the party.

The table condenses NCSL's entries. The timing column paraphrases; the statutes themselves have more conditions than fit in a cell, and anyone writing about a particular state should read the statute NCSL links.

State	Governor may appoint	Same party required	Election timing (condensed from NCSL)
Alabama	Yes	No	Special election; timing depends on distance from next general
Alaska	Yes	No	Special primary 60 to 90 days after vacancy; special general within 60 days after
Arizona	Yes	Yes	Next general if vacancy more than 150 days before primary; otherwise the second general
Arkansas	Yes	No	Next general if four or more months away; otherwise the second general
California	Yes	No	Next November if more than 148 days before primary; otherwise the second November
Colorado	Yes	Yes	Next general; no additional timing rule
Connecticut	Conditional (two-thirds legislative approval)	No	Special election called within 10 days, held about 150 days later, or at the November general if timing fits
Delaware	Yes	No	Next general; no additional timing rule
Florida	Yes	No	Next general; no additional timing rule
Georgia	Yes	No	Next November general at least 40 days after vacancy
Hawaii	Yes	Yes	Next November if more than 21 days before primary; otherwise the second November
Idaho	Yes	No	Next general; if vacancy within 30 days of a general, the second general
Illinois	Yes	No	Next general; no additional timing rule
Indiana	Yes	No	After candidate certification, the second general after the vacancy
Iowa	Yes	No	Next general unless fewer than 89 days away; then the second general
Kansas	Yes, from a three-person legislative list	Yes	Next general
Kentucky	No	No	Special election; details not specified in NCSL's summary
Louisiana	Conditional, temporary	No	If more than one year left, special election on set dates; one year or less, next regular election
Maine	Yes	No	If 60 or more days before primary, nominated at primary and elected at general; otherwise the second general
Maryland	Yes	Yes	Filled at the next election if vacancy is at least 21 days before the filing deadline
Massachusetts	Yes	No	Special election 145 to 160 days after vacancy, with adjustments near April 10 in even years
Michigan	Yes	No	Next November general more than 120 days after vacancy
Minnesota	Yes	No	Next November if more than 11 weeks before primary; otherwise the second November
Mississippi	Yes	No	Special election within 115 days of the governor's notice, or at the general in a general election year
Missouri	Yes	No	Next general; no additional timing rule
Montana	Yes, from a three-name party list (may decline)	Yes	Next general
Nebraska	Yes	No	Next general if vacancy on or before August 1; otherwise the second general
Nevada	Yes	Yes	Next general; no additional timing rule
New Hampshire	Yes	No	Next general; no additional timing rule
New Jersey	Yes	No	Next November if more than 70 days before general; otherwise the second; governor may call an earlier election
New Mexico	Yes	No	Next general at least 30 days after vacancy
New York	Yes	No	Next November if more than 59 days before primary; otherwise the second November
North Carolina	Yes	Yes	First legislative general election more than 60 days after vacancy
North Dakota	No	No	Special election within 95 days; none if vacancy within 95 days of term's end
Ohio	Yes	No	Next regular state election more than 180 days after vacancy
Oklahoma	Yes	No	Special election coinciding with the next primary, runoff and general
Oregon	Yes, within 30 days	No	Special election 80 to 150 days after vacancy, tied to general election timing
Pennsylvania	Yes	No	Next general or municipal election at least 90 days after vacancy
Rhode Island	No	No	Special election as early as allowed; with the general if vacancy falls July 1 to October 1 in even years
South Carolina	Yes	No	Next general unless fewer than 100 days away; then the second general
South Dakota	Yes	No	Next general unless within 90 days; then the general two years later
Tennessee	Yes	No	Next general; no additional timing rule
Texas	Conditional, temporary	No	Even-year vacancies before the 62nd day before the primary go to the next general; otherwise special election on the first uniform date at least 36 days after the order
Utah	Yes, from a legislative list of three	Yes	Election on a municipal or general election day
Vermont	Yes	No	Special election within six months, or at the general if within six months of it
Virginia	Yes	No	Next November if more than 120 days away; otherwise the second November
Washington	Yes	No	Special election not less than 80 days after vacancy, or at the general if within eight months
West Virginia	Yes	Yes	At the general if vacancy on or before the 84th day before the primary; otherwise a special primary and general
Wisconsin	No	No	Special election 62 to 77 days after the order, or with the regular primary and general in certain spring windows
Wyoming	Yes	Yes	Next general; no additional timing rule

Idaho's entry rests on a statute that predates most of the others. Idaho Code 59-910, enacted in 1917 and never since amended according to its history note, provides that "whenever any vacancy shall occur in the office of United States senator from the state of Idaho by death, resignation or otherwise, the governor shall have the power and is hereby authorized and empowered to fill such vacancy by appointment," the appointee to serve "until such time as a United States senator is regularly elected to fill such vacancy, at the next succeeding general election," with the proviso that if the vacancy occurs within thirty days of a general election, no election to fill it is held at that general election. Idaho has no same-party requirement and no special election. Lesson 7 covers the statute's history and the appointments Idaho has made under it and its predecessor: seven on the Senate's list of appointed senators, plus Frank R. Gooding's 1921 appointment to the last weeks of a term he had already won, which the Senate's list leaves out by rule.

Questions and answers

Does the amendment set a maximum length for a temporary appointment?

No, and no court has read one in. Valenti upheld about 29 months, the Supreme Court affirmed, and Rodriguez cited the result approvingly. The Seventh Circuit in Judge v. Quinn held that the appointment must end in an election at some point and that the governor must call it, but it did not fix a deadline, and the plaintiffs there had given up asking for an early date. The practical maximum is set by state law: in the 35 next-general-election states, nearly two years if the vacancy falls just after an election.

Can a state refuse to allow appointments at all?

Yes. The proviso says the legislature "may" empower the governor; it does not have to. NCSL counts four states that have not: Kentucky, North Dakota, Rhode Island and Wisconsin. In those states a vacancy stays empty until the special election, which is the rule the 1787 Constitution applied to the House and the rule S.J. Res. 7 would have extended to every state.

Must a state hold a primary before a special election to fill a Senate seat?

No. Trinsey v. Pennsylvania (3d Cir. 1991) held that the amendment does not require a primary and that a state may let parties nominate under their own rules. The court noted that Pennsylvania had required primaries for vacancy elections in 1913 and dropped the requirement in 1937, and treated that as the legislature's call.

Who decides who may vote for senator?

The state, through its rule for its most numerous legislative branch, subject to the Fifteenth, Nineteenth, Twenty-fourth and Twenty-sixth Amendments and federal statutes such as the Voting Rights Act. Once the state qualifies a voter for its lower house, the right to vote for senator is federal, which is how the courts in Chapman v. King (1946) and Forssenius v. Harman (1964) reached a party's white primary and Virginia's certificate-of-residence rule under the Seventeenth Amendment itself.

What happened to the Obama seat after Judge v. Quinn?

The Seventh Circuit held that the governor had a duty to issue a writ, that Illinois law fixed November 2, 2010 as the date, and that the ballot question should go back to the district court; it suggested the state might use the candidates already qualified for the next full term. The opinion was issued June 16, 2010, before the election. This lesson reports the opinion and does not go beyond it; the election itself is covered in the sources on Illinois's 2010 Senate race, which were not among those verified here.

Why does the Senate's list of appointed senators begin in 1913?

Because appointments before 1913 were made under the original Article I, Section 3 recess clause, a different power with a different limit (until the legislature next met). The Senate's list notes that it covers the Seventeenth Amendment era and excludes senators later appointed to seats they had already won. Idaho's Kirtland Perky, appointed in November 1912, is an example of the older kind, as lesson 7 explains.

Is the Valenti decision still good law if the Supreme Court only summarily affirmed?

Summary affirmances bind lower courts on the precise issues necessarily decided, but their reach is debated, and the Judge v. Quinn plaintiffs argued the affirmance rested on mootness. The Seventh Circuit did not resolve that, noting instead that the Supreme Court had discussed Valenti in Rodriguez and that the Seventh Circuit itself had relied on it in 1982. Every court to consider the question has treated Valenti as persuasive at least, and no court has struck down a vacancy election delay since.

How does Idaho compare with its neighbors?

Idaho (appointment, next general election, no party rule) matches Nevada's and Wyoming's timing but not their same-party rules, and differs from Oregon and Washington, which hold special elections, and from Montana and Utah, which require same-party appointees from lists. Of Idaho's six neighbors, only Nevada and Wyoming require the appointee to share the departed senator's party, and none allows no appointment at all. The NCSL table has each.

Hard questions

Judge Frankel said the Valenti majority let an appointee occupy nearly half a Senate term, which mocks "elected by the people." Wasn't he right?

His textual argument is the strongest ever made against long appointments, and the Seventh Circuit's later finding that 27 vacancies since 1913 never saw an election supports his fear. The majority's answer was also textual: "as the legislature may direct" gives the legislature control over timing, and the states had read it that way for 55 years without objection from Congress or the courts. The two readings cannot both be fully right, and the courts chose the majority's. A reader who finds Frankel more persuasive has a remedy the Constitution provides, which is the one Senator Feingold proposed in 2009; it has not moved, which says something about how many legislatures want to give up the appointment power.

If the Seventh Circuit thought the plaintiffs were right about the writ, wasn't denying relief a dodge?

It was an application of the ordinary rule that a preliminary injunction requires irreparable harm, and the plaintiffs, by the court's account, could not name any when asked at oral argument. The court also made the merits ruling in a way that bound the parties for the rest of the case: it said the governor had a duty, said the date, and said he could issue the writ "tomorrow." That is not a dodge so much as a refusal to use an emergency remedy for a problem the ordinary process could still fix before the harm arrived. Whether it would have granted a permanent injunction is a question the case did not reach.

Same-party requirements let a legislature override the governor the voters chose. How is that consistent with "as the legislature may direct"?

The proviso gives the legislature two choices: whether to allow appointments, and how to direct the election. A same-party requirement conditions the first. No court has struck one down, and the logic of Valenti, Rodriguez and Trinsey, which treat the clause as a broad grant to the legislature, cuts in their favor. The counterargument is that the proviso lets the legislature empower "the executive," not a party or a list, and that Kansas, Utah and Montana's list systems come close to letting someone other than the executive choose. No court has decided that question. It is a live one, and this course does not pretend otherwise.

Doesn't the whole body of case law show that the amendment's promise of popular election was hollow from the start?

It shows that the vacancy clause is a compromise and that courts have enforced it as one. The main rule, popular election for every full term, has been followed without exception since 1914; the Senate's state timelines record no legislature choosing a senator since the savings-clause senators left in 1919. The exception, appointments, covers vacancies only, and even there the Seventh Circuit found 166 of 193 vacancies ended in an election. The honest criticism is narrower: that in 27 cases the election never came, and that the courts have not yet said how long is too long. Both points are documented above. "Hollow" overstates them.

The 2009 controversies were about one governor's conduct, not the clause. Why treat them as a constitutional problem?

Because they exposed what the clause permits. The Illinois appointment was lawful under the amendment and the Illinois statute whatever the governor's motives, which is why the Seventh Circuit focused on the writ rather than the appointment. The other three appointments in January 2009 drew no accusation of wrongdoing and still prompted a constitutional amendment, because they put four unelected senators in the chamber at once. The clause allowed every one of those outcomes. Whether it should is a policy question, and lesson 10 treats the proposals to change it alongside the proposals to repeal the amendment itself.