Does a Governor Have to Appoint a Vacated U.S. Senate Seat By Party? | Opinion

This originally appeared on Quora. Answered by Ross Cohen.

It varies by state.

Some states elect the replacement, others appoint them. Some do a combination of the two, with an interim Senator appointed until there's a special election.

Some states change their rules in response to events. Alaska took the appointment power away from their governor after Gov. Frank Murkowski appointed his daughter. Massachusetts changed their rules multiple times over the last decade; first when John Kerry ran for president so they could prevent Mitt Romney from appointing a replacement from a different party, then later they switched to a hybrid system of interim appointment before special election after Deval Patrick (D) became governor.

When the governor appoints a replacement, temporary or otherwise, some states require them to be from the same party as the one they replace, as Hawaii does. So does Arizona, Utah, Wyoming, North Carolina, and Maryland. Only six states, so it's not very common. Former Vermont Governor Howard Dean said it was a "tradition" to appoint someone from the same party in Vermont, but they use special elections now.

Sometimes the governor appoints a trusted advisor or colleague that promises not to seek a full term, as was done in Delaware with Joe Biden's replacement (D-DE), Ted Kaufman (D), who then sat out as Chris Coons (D) ran against and beat Christine O'Donnell (R). The same thing happened in MA when Gov. Deval Patrick (D) appointed Mo Cowan (D) to replace John Kerry (D), on the promise that he doesn't run to keep the seat.

Others make no such promise, such as Lisa Murkowski (R-AK), the one that was appointed by her father in '02 and ran in '04, or to name an example from the other party, Kirsten Gillibrand (D-NY), who was appointed by Gov. Patterson (D) to replace Hillary Clinton (D) and then successfully campaigned to complete the term in the 2010 election cycle. To take another example, in South Carolina, Tim Scott (R-SC) was appointed by then-Gov. Nikki Haley (R) to replace Sen. Jim DeMint (R) and ran to keep the seat, though there was little danger of electing a Democrat in SC (though DeMint did follow a Democrat, that person was in office for nearly 40 years).

Sometimes the state's law is unclear. From what I understand, New Jersey law is ambiguous and contradictory in this area as there are interpretations allowing different courses of action (or at least it was when it last came up). In 2013, then-Gov. Chris Christie (R) could have appointed someone to complete a term, making his party happy if it was a Republican, but Democrats would potentially take him to court since the statute is debatable. Plus, New Jerseans, who typically vote for Democrats for Senate and President, might have taken out their anger on him at the polls that November. Alternatively, he could keep Democrat Frank Lautenberg's seat for a Democrat, making himself look bipartisan and magnanimous, which would piss off his party, which was good for his brand but bad for his 2016 presidential primary chances. Choosing either of these options was a mixed bag and would both carry the negative perception of making him look scared of his next option, calling for a November election. Doing that would deprive him of kingmaker status and even more consequently, have him running in the same election as Cory Booker, at the time the Mayor of Newark, NJ and popular Democratic rising star running to succeed Lautenberg in the Senate.

Instead, Christie chose what he saw as his best option, politically speaking. He decided to appoint an Interim Senator from his own party (to give them a better chance of beating Booker), and call for a special election. However, instead of having the election with all the others in November for essentially no extra cost to taxpayers, he chose to schedule it for a few weeks earlier. His argument was that NJ can't stand to be without representation in the Senate and needs someone there right away, and that the voters should also have their say as soon as possible after that. This way he got to duck some of the downsides above, but only by costing his supposedly cash strapped state ~$25 million dollars to run an extra election weeks before the regular one, just so he didn't have to run at the same time as Cory Booker, who would bring a lot of Democrats to the polls and push down his vote margin, making him look less popular. It was a selfish decision, putting himself ahead of his state, for pretty meager benefit, which ultimately proved unhelpful as he not only went on to lose the presidential primaries, but he finished his term at historic levels of unpopularity within his state. Christie had said the state couldn't afford early voting or infrastructure investments that were mostly covered by the federal government, but in this case, he said "I don't know what the cost is and I quite frankly don't care."

The Daily Show unearthed an old recording of Chris Christie saying it would be an irresponsible waste of money to...do exactly what he ended up doing. The only difference is that the estimated cost was more than twice what he said.

More recently, for political reasons, Wisconsin Gov. Scott Walker and his Republican allies tried to make the opposite argument, to skip holding a special election—for nearly a year—supposedly because it was a waste of money (to have representation?) but in reality because he/they feared they would lose the elections since Republicans are unpopular right now and Dems are on a big winning streak. Fortunately, the courts disagreed, but it's been a long, slow process. But this isn't for Senate, just another illustration of politicians making political decisions in these types of situations.

As I said, the laws and customs vary in every state. When there's wiggle room, you can usually count on a politician to take advantage of it for political gain. If the politician is particularly slimy, you can count on them brazenly doing whatever it takes for themselves or their party (to the extent it helps themselves), even if the rationales strain all logic and credulity, at the expense of their own constituents.

Update: Here's how every state handles Vacancies in the United States Senate

Presently, 36 states fill a U.S. Senate vacancy at their next regularly-scheduled general election. The remaining 14 require that a special election be called. And only four states prohibit the governor from making an interim appointment, requiring instead that the seat remain vacant until the next election (whether regular or special) is held. In another three, the governor may make an appointment to fill the vacancy temporarily, but only under very strict conditions.