The laws on replacing a U.S. senator who dies or resigns in midterm vary from state to state. Most states allow the governor to appoint a temporary replacement until an election can be held. Several, however, insist that the interim appointee be from the same party as the former senator. In Wyoming, which Republican Sen. Craig Thomas represented until his death last week, the governor must select one of three candidates nominated by the state central committee of the party of the predecessor. This notion of party consistency makes eminent sense.
In states that do not have such restrictions, governors sometimes choose replacements from their own party rather than from the party of the previous senator. In 2002, for example, Minnesota's Independence Party Gov. Jesse Ventura replaced Democratic Sen. Paul Wellstone with fellow Independence Party member Dean Barkley, who had run against Wellstone in 1996 and earned only 7 percent of the vote. Today, some Democrats worry that South Dakota's Republican governor, Mike Rounds, will appoint a Republican to replace Democratic Sen. Tim Johnson, who suffered a brain hemorrhage in December, if Johnson resigns - thereby changing the balance of power in the Senate.
Some legal scholars question the constitutionality of laws that place restrictions on the governor's temporary replacement, as the 17th Amendment does not clearly give state legislatures the power to participate in these appointment decisions. Experts disagree about this, however, and such laws are unlikely to be challenged in court.
It makes sense to allow interim representation rather than live with a vacancy until the next election. But it doesn't make sense to allow the governor (as under Maryland and Virginia laws) to shift the party makeup of the Senate. Making sure that the governor appoints an interim politician from the same party as the previous officeholder preserves the will of the electorate.
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