Joseph A. VALENTI, Pittsford, New York, for himself and for all persons similarly situated, Plaintiff, v. Nelson A. ROCKEFELLER, Governor of the State of New York, Albany, New York; and John P. Lomenzo, Secretary of State of the State of New York, Albany, New York, Defendants. Randolph PHILLIPS, Nina Phillips, Samuel J. Phillips, Patricia N. Berman and Elizabeth Bobrick, in their own right individually and as members of The Committee for Fair Play for Voters, Plaintiffs, v. Nelson A. ROCKEFELLER, Governor of the State of New York; and John P. Lomenzo, Secretary of State of the State of New York, Defendants. George BACKER, Individually and on behalf of the Citizens, Residents and Voters of the State of New York, Plaintiffs, v. Nelson A. ROCKEFELLER, Governor of the State of New York, Defendant.
Civ. A. No. 1968-224, Nos. 68 Civ. 2942, 68 Civ. 2988
United States District Court, W.D. New York, S.D. New York
Nov. 12, 1968
292 F. Supp. 851
Judgment Affirmed Jan. 20, 1969. See 89 S.Ct. 689, 693.
Jerome M. Kay, New York City, for plaintiff, George Backer.
John Manning Regan, Hogan & Regan, Rochester, N. Y., for plaintiff, Joseph A. Valenti.
Ruth Kessler Toch, Sol. Gen., and Jean M. Coon, Asst. Atty. Gen., of counsel, Louis J. Lefkowitz, Atty. Gen., of the State of New York, for defendants.
Before LUMBARD, Chief Circuit Judge, HENDERSON, Chief District Judge and FRANKEL, District Judge.
These three suits brought by New York voters1 against the Governor and the Secretary of State sought a determination that the Seventeenth Amendment to the United States Constitution requires that the Senate vacancy created by the death of Senator Robert F. Kennedy on June 6, 1968, be filled at the November, 1968 general election. Since this vacancy arose less than 60 days prior to New York‘s regular spring primary in an even-numbered year, under
Plaintiffs contend that
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.
Plaintiffs read this provision as permitting a “temporary” appointee to serve only until the vacancy can be filled by the people at the next “regularly scheduled election if there is sufficient time between the happening of the vacancy and the scheduled election.”3 In the circumstances of this case they argue that the election must be held in November, 1968, even though the candidates for the vacancy could not have been selected this year through the state‘s normal procedure4 of nominations by the party committee in March or April followed by a popular primary in June preceding the election.
We hold that the provisions of
Our decision is strongly influenced by the fact that from the ratification of the
These actions were commenced almost simultaneously, the Valenti suit in the Western District of New York on July 16, and the Phillips and Backer suits in the Southern District of New York on July 17 and 19 respectively. On July 29, 1968, Chief Judge Henderson certified the need in the Valenti case for the appointment of a three-judge court,
A brief review of the New York legislation dealing with Senatorial vacancy elections is in order before we examine the current
However, under the terms of Laws 1951, ch. 257, a Senatorial vacancy election must be held in an even-numbered year. Furthermore, New York now conducts its primary election in June rather than in September. Laws 1965, ch. 1070, applying by its terms to
Plaintiffs’ main argument has been that the
Since we reject the suggestion that an election in 1968 is constitutionally required, we must also answer another question: Does the
In order to assess the constitutionality of
The
But we do agree with plaintiffs that the Amendment‘s drafters did intend to place some limit on the discretion of the states concerning the timing of vacancy elections by specifying that a Governor may make only a “temporary” appointment until an election is held. We would have difficulty, for example, squaring the word “temporary” with a statute providing that the Governor‘s appointee is to serve out the remainder of a term regardless of its length. The question before this court is whether
It is highly significant that most legislatures, as indicated by the Senatorial vacancy statutes of the 50 states,8 have interpreted the
In the three years following the ratification of the
TABLE I
MAXIMUM PERIOD OF DELAY AUTHORIZED BY SENATE VACANCY STATUTESa BETWEEN OCCURRENCE OF VACANCY AND THE VACANCY ELECTION
| Timing of Vacancy Election | Maximum Delay Authorized Before Election | Number of States Having Provision in: 1915b 1968c | |
|---|---|---|---|
| Special Election by Order of Governor | No specific authorization of delay | 2 | 0 |
| Special Election within one year of creation of vacancy | One year | 9 | 5 |
| Next annual (“general” or “municipal“) election | One year, plus time for nominationsd | 4 | 3 |
| Next biennial (“general“, “congressional“, “regular” or “state“) election | Two years, plus time for nominations | 23 | 40 |
| 38 | 48 | ||
| States with laws requiring election within approximately one year of creation of vacancy | 15 | 8 |
| States with laws allowing interval of approximately two years or more before election | 23 | 40 |
It is true that 13 of the states which acted between 1913 and 1915, including New York, Laws 1913, ch. 822, did pass statutes which required that an election be held within approximately one year from the occurrence of a vacancy; two more provided that a special election should be held but specified no date. But the fact that these legislatures chose to provide for vacancy elections within approximately one year cannot be taken as proof that they believed themselves without power under the
In the years since 1913 the states, in light of their experience in filling Senatorial vacancies, have taken a more liberal view of their power under the Amendment; many more states now require that Senatorial vacancy elections be held only in conjunction with the biennial congressional elections. Thus today the statutes of 40 states in effect establish such a policy; only eight states require that an election be held within approximately one year after a vacancy has arisen.9
While this impressive coincidence of contemporaneous interpretation and subsequent practice among the states is not sufficient alone to resolve this case, there is ample authority for relying on this evidence as one persuasive guide to constitutional construction.
In McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869 (1892), a Michigan statute providing for the election by district of presidential electors was challenged as violating
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress * * *” (emphasis added)
A unanimous Supreme Court upheld the statute, placing great emphasis on the widely varying state legislation contemporaneous with, and subsequent to, the ratification of the Constitution. This “practical interpretation,” the Court felt, supported viewing the clause in question as granting broad discretion to state legislatures regarding the manner of choosing electors. The Court made this comment:
“The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction is entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration so plainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we are of opinion that such doubt is thereby resolved against them, the contemporaneous practical exposition of the constitution being too strong and obstinate to be shaken or controlled. Stuart v. Laird, 1 Cranch, 299, 309 [2 L.Ed. 115].” 146 U.S. at 27, 13 S.Ct. at 7.
Of similar import is Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932):
“The practical construction of article 1, § 4 [relating to the state‘s pow-
er to set the time, place, and manner of holding Congressional elections], is impressive. General acquiescence cannot justify departure from the law, but long and continuous interpretation in the course of official action under the law may aid in removing doubts as to its meaning. This is especially true in the case of constitutional provisions governing the exercise of political rights, and hence subject to constant and careful scrutiny. Certainly, the terms of the constitutional provision furnish no such clear and definite support for a contrary construction as to justify disregard of the established practice in the states.” 285 U.S. at 369, 52 S.Ct. at 400. (emphasis added)
See Cooley v. Board of Wardens, 12 How. 299, 53 U.S. 299, 314-315, 13 L.Ed. 996 (1852); cf. Ray v. Blair, 343 U.S. 214, 229-230, 72 S.Ct. 654, 96 L.Ed. 894 (1952).10
There is little doubt that the problem of holding Senate vacancy elections has been subjected, in the phrase of Smiley v. Holm, to “careful scrutiny” by the states. There were 156 temporary appointments to the Senate in the years from 1913 to 1967.11 That in the light of this experience more and more states have chosen to adopt vacancy statutes similar to
We find that there are at least three substantial state interests which are furthered by the requirement of
Moreover, it would be considerably more difficult for Senate candidates to finance a campaign in an off-year; they must carry most of the burden themselves since the party organizations do not usually collect funds in such years to conduct campaigns regarding national issues. Of course, the greater use of television in recent campaigns places those candidates unable to raise large sums of money at a great disadvantage, particularly in New York with over 3,000,000 registered voters, many of whom could not be
We believe that it was to allow the different states to take account of considerations such as these that the vacancy provision of the Amendment granted to the legislatures an area of discretion.
While we have seen that a clear consensus has developed among the states concerning the appropriateness of conducting vacancy elections only in congressional election years, no such consensus is reflected in the provisions governing the time which must elapse between the occurrence of the vacancy and the election at which it is filled. As Table II below indicates, seven of the 40 laws passed from 1913 to 1915
TABLE II
MINIMUM PERIOD OF DELAY REQUIRED BY SENATE VACANCY STATUTESa BETWEEN OCCURRENCE OF VACANCY AND THE VACANCY ELECTION
| Minimum Delay Required | Number of States With This Requirement in: 1915 1968 | |
|---|---|---|
| No specific requirement | 33 | 27 |
| 1-89 days | 4 | 8 |
| 90-180 days | 2 | 6 |
| Period between primary and election, plus 40-70 days | 1 | 8 |
| 40 | 49b | |
explicitly required that some period intervene between the creation of a vacancy and the holding of an election to fill it. The obvious purpose of these provisions was to allow time for the party nominees to be selected and for a campaign to be conducted by the nominees. Only one statute, that of Pennsylvania, specifically provided that the candidates were to be selected through a primary procedure. Although none of the early statutes required a delay as long as the seven month period which must now intervene under
The diversity among these provisions has continued to the present. See Table II. Most states still do not specifically provide for a delay between the vacancy and the election, although surely the need for at least some delay to allow for the nomination of candidates is implicit in all of the statutes. The current vacancy statutes of 22 states require that there be some interval before the election is held. The intervals required by the laws of four states exceed the interval which has occurred here under
We do not believe it a matter of constitutional significance that the delay before the election required under
New York‘s decision to require candidates for a vacancy election to be selected subject to a direct primary is supported by policy considerations even more compelling than those which justify the prohibition of vacancy elections in “off-years.”
New York did not have a direct primary election for statewide candidates, including Senators, until 1967. Laws 1967, ch. 716, § 2;
If we had ruled that the need for a prompt election in 1968, or shortly thereafter,16 outweighed the state‘s interest in conducting a primary, the nominees for the vacancy would have had to have been selected by the few hundred members of the state committee of each party, rather than by the several million enrolled party members.
The Attorney General has advanced three reasons in support of the Legislature‘s decision in 1965 to change the date of the primary from the “seventh Tuesday before the general election,”
Plaintiffs make several contentions in attempting to establish the unconstitutionality of
Plaintiffs base their argument that
Plaintiffs point out that the first portion of the
Initially, it is not clear that
But assuming that special elections are required by
An important practical consideration also distinguishes the instance of a House vacancy from one occurring in the Senate. It is much easier for both the state government and the political parties to organize and conduct a special election in a single House district than to conduct one covering a populous state such as New York. In New York the problems of administering an election, financing a campaign, and familiarizing the electorate with the candidates are multiplied roughly 41 times in a statewide election as opposed to an election held in one of the state‘s 41 House districts. This fact supports the decision of the legislature not to hold special elections to fill Senate vacancies. It also provides another logical explanation for the apparent intent of the drafters of the
All of these reasons persuade us that the House vacancy provision can give us no aid in construing the
There is a bit more substance in plaintiffs’ analogy from the clause of the Constitution which was superseded by the
[I]f 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.
Art. I, § 3, cl. 2 .
At the time the Constitution was ratified it was customary for the state legislatures to meet at least once a year. See A Collection of the Thirteen United States of North-America (1783) (published by order of Congress); The American‘s Guide (1839) (compilation of state constitutions). See generally Dealey, Growth of American State Constitutions (1915). Consequently, in practice a “temporary” appointee named under the authority granted by
The clear purpose of the
However, our research reveals that by 1913 there was in fact no settled custom under
Even if there had been a consistent practice prior to 1913 to limit temporary appointments to approximately one year, our ultimate decision here would be no different. There is very little evidence from the legislative history of the
It is true that Representative Tucker of Virginia, who in 1892 drafted and first introduced the vacancy provision ultimately ratified as part of the
Little weight can be given to Representative Tucker‘s 1892 interpretation of his vacancy provision since there is no indication that the Congress which proposed the
There is no direct evidence revealing the reason for the ultimate return in 1912 to the vacancy provision contained in Tucker‘s original draft. However, it appears that the Tucker draft became the focus of attention not because of its vacancy provision, but because it included a clause which would have vested in the states exclusive control over the “Times, Places, and Manner of holding Elections for Senators.” This repeal of the residual federal power over Senate elections contained in the original Constitution,
We must conclude, therefore, that the legislative history of the Amendment sheds little light on the interpretation of the vacancy provision and does not sustain plaintiffs’ contentions in this case. We read the Amendment to confer a reasonable discretion upon the states concerning the timing and manner of conducting vacancy elections. We hold that
Our dissenting brother finds decisive in his resolution of this case such Supreme Court decisions as Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). These are instances, it is true, where the Supreme Court adopted an interpretation of a constitutional amendment contrary to the laws passed by many states soon after they ratified the Amendment. See also Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). We do not assert, of course, that contemporaneous state statutes always constitute persuasive authority for the constitutional interpretation which they incorporate. But Baker and Brown are far removed from the circumstances of this case. Both interpreted the equal protection clause of the
In this case we are confronted with no fundamental imperfection in the functioning of democracy. No political party or portion of the state‘s citizens can claim that it is permanently disadvantaged by
New York‘s Legislature has seen fit, in the light of experience and changing conditions, to provide that senatorial vacancies be filled by an election to be held when the people are also electing their representatives to the House. The Legislature has also provided that opportunity be given to select the candidate for Senator at party primaries, and has decided to hold primaries in June, instead of September. One of the goals served by these changes in the state‘s law is to maximize voter participation in the nomination and election of Senators, even though as a consequence the holding of elections is somewhat delayed. Forty states have exercised their discretion under the
We are aware of the importance of the right to vote in this country‘s general scheme of constitutional government. See Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (Oct. 15, 1968). We are also aware of the basic principle of federalism which requires that a federal court exercise great caution before striking down a state statute as repugnant to the Constitution. As there are substantial state interests furthered by each of these changes affected by
The complaints are dismissed.
Duplicate originals of this opinion are being filed in the Western District of New York and in the Southern District of New York.
APPENDIX A
Original and Current Senate Vacancy Statutes of the Fifty States1
| State | Vote on Ratification of 17th Amendment | Date of First Vacancy Statute | Election at Governor‘s Discretion | Special Election Within A Year | Vacancy Filled at Next Annual Election | Vacancy Filled at Next Biennial Election with No Specified Period for Nomination | Vacancy Filled at Next Biennial Election Preceded by a Specified Period of Less than 90 days | Vacancy Filled at Next Biennial Election Preceded by a Specified Period of 90 Days or more | Vacancy Filled at Next Biennial Election Preceded by a Period for the Specific Purpose of Conducting a Primary |
|---|---|---|---|---|---|---|---|---|---|
| Ala. | no vote | 1915 | O, C2 | ||||||
| Alaska | no vote | 1960 | C | ||||||
| Ariz. | yes | 1913 | O, C | ||||||
| Ark. | yes | 1917 | O, C | ||||||
| Calif. | yes | 1913 | O, C | ||||||
| Col. | yes | 1913 | O, C | ||||||
| Conn. | yes | 1913 | O, C | ||||||
| Del. | no vote | 1915 | C | O | |||||
| Fla. | no vote | 1913 | O, C | ||||||
| Ga. | no vote | 1913 | O, C | ||||||
| Hawaii | no vote | 1961 | C | ||||||
| Idaho | yes | 1917 | O, C | ||||||
| Ill. | yes | 1913 | O, C | ||||||
| Ind. | yes | 1915 | O, C | ||||||
| Iowa | yes | 1917 | O, C | ||||||
| Kansas | yes | 1927 | O, C | ||||||
| Ky. | no vote | 1914 | O | C | |||||
| La. | yes | 1915 | O, C | ||||||
| Me. | yes | 1915 | O | C | |||||
| Md. | no vote | 1914 | O | C | |||||
| Mass. | yes | 1913 | O, C | C | |||||
| Mich. | yes | 1915 | O | O, C | |||||
| Minn. | yes | 1913 | C | ||||||
| Miss. | no vote | 1914 | O, C | ||||||
| Mo.3 | yes | 1915 |
APPENDIX A—Continued
Original and Current Senate Vacancy Statutes of the Fifty States—Continued
| State | Vote on Ratification of 17th Amendment | Date of First Vacancy Statute | Election at Governor‘s Discretion | Special Election Within A Year | Vacancy Filled at Next Annual Election | Vacancy Filled at Next Biennial Election with No Specified Period for Nomination | Vacancy Filled at Next Biennial Election Preceded by a Specified Period of Less than 90 days | Vacancy Filled at Next Biennial Election Preceded by a Specified Period of 90 Days or more | Vacancy Filled at Next Biennial Election Preceded by a Period for the Specific Purpose of Conducting a Primary |
|---|---|---|---|---|---|---|---|---|---|
| Mont. | yes | 1915 | O, C | ||||||
| Neb. | yes | 1917 | O, C | ||||||
| Nev. | yes | 1915 | O, C | ||||||
| N.H. | yes | 1915 | O, C | ||||||
| N.J. | yes | 1920 | O | O, C | |||||
| N.M. | yes | 1915 | O, C | ||||||
| N.Y. | yes | 1913 | O | C | |||||
| N.C. | yes | 1913 | O, C | ||||||
| N.D. | yes | 1927 | O, C | ||||||
| Ohio | yes | 1914 | O, C | ||||||
| Okla.4 | yes | 1913 | O | ||||||
| Ore.5 | yes | 1915 | C | ||||||
| Pa. | yes | 1913 | O | C | |||||
| R.I. | no vote | 1914 | O | C | |||||
| S.C. | no vote | 1914 | O | C | |||||
| S.D.6 | yes | 1915 | O | C |
APPENDIX A—Continued
Original and Current Senate Vacancy Statutes of the Fifty States—Continued
| State | Vote on Ratification of 17th Amendment | Date of First Vacancy Statute | Election at Governor‘s Discretion | Special Election Within A Year | Vacancy Filled at Next Annual Election | Vacancy Filled at Next Biennial Election with No Specified Period for Nomination | Vacancy Filled at Next Biennial Election Preceded by a Specified Period of Less than 90 days | Vacancy Filled at Next Biennial Election Preceded by a Specified Period of 90 Days or more | Vacancy Filled at Next Biennial Election Preceded by a Period for the Specific Purpose of Conducting a Primary |
|---|---|---|---|---|---|---|---|---|---|
| Tenn. | yes | 1913 | O, C | ||||||
| Texas | yes | 1913 | O, C | ||||||
| Utah | rejected | 1915 | O, C | ||||||
| Vt. | yes | 1915 | C | ||||||
| Va. | no vote | 1914 | O, C | ||||||
| Wash. | yes | 1915 | O, C | ||||||
| West Va. | yes | 1921 | O | C | |||||
| Wisc. | yes | 1913 | O | C | |||||
| Wyo. | yes | 1913 | O, C | ||||||
| TOTALS: | O-2 C-2 | O-10 C-5 | O-5=(17) C-3=(8) | O-22 C-20 | O-4 C-7 | O-3 C-5 | O-2=(31) C-8=(40) |
Citations to Original and Current*
Senate Vacancy Statutes of the Fifty States
All references to state constitutions affecting the first vacancy statutes are to the constitutions in effect at the time the statute involved was passed.
Alabama first provided for a special election if more than four months remained before the general election. Law 1915, No. 410, p. 364.
The present law is similar.
Alaska first provided, and now provides, for filling the vacancy at the first general election more than three months after the vacancy; however, the governor‘s temporary appointee may serve out any unexpired term of 29 months or less.
Arizona first provided for filling the vacancy at the next general election. If this would have resulted in a lapse of more than six months, the governor had power to call a special election. Rev. Stat., Civ.Code tit. 12, § 2870 (Pattee 1913). General elections were held every even year. Rev. Stat., Civ. Code tit. 12, § 2866 (Pattee 1913).
The present law is identical.
Arkansas first provided for holding a special election within a year of the occurrence of the vacancy. Acts 1917, No. 402, p. 1869.
Present law provides for filling the vacancy at the first general election more than four months after the vacancy.
California first required filling the vacancy at the next general election, which was held every even year. Stat. 1913, ch. 156, pp. 237, 238
The present statute is identical.
Colorado first required filling the vacancy at the next general election, which was held annually, Laws 1913, ch. 79, p. 267;
Under current law the general election is held “every even numbered year.”
Connecticut first required simply that the governor should order an election, apparently at his discretion. Pub.Acts 1913, ch. 219, pp. 1839-1843.
The present law requires filling the vacancy at the first state election held more than 60 days after the vacancy.
Delaware first provided for a special election if the vacancy occurred more than one year before the next general election. Rev. Code § 1890 (1915).
The present statute provides for the vacancy to be filled at the next biennial general election.
Florida first provided for filling the vacancy at the next general election, which was held every even year. Laws 1913, ch. 6471, pp. 277, 278;
The present statute is identical.
Georgia first required vacancies to be filled at the “next election * * * for the Members of Congress.” Acts 1913, No. 168, pp. 135, 136.
The current statute is identical.
Hawaii has always required filling the vacancy at the first general election
Idaho first required filling the vacancy at the first general election more than 30 days after the vacancy. Laws 1917, ch. 27, pp. 68-69. General elections were held every even year. Compiled Stat. tit. 4, § 491 (1919).
The present statute is identical.
Illinois first required filling the vacancy at the “next election of representatives in Congress.” Laws 1913, S.B. No. 372, pp. 307, 308.
The present statute is identical.
Indiana first required filling the vacancy at the “next regular election of state officers,” which apparently took place every even year. Acts 1915, ch. 4, pp. 13-14; Laws 1881, ch. 47, § 2.
The present statute is identical.
Iowa first required filling the vacancy at the “next succeeding general election.” Acts 1917, ch. 401, p. 430. General elections were held biennially. Compiled Code § 343 (1919).
The present statute requires that the vacancy be filled at the “next regular election at which such vacancy can be filled.”
Kansas first provided for filling a vacancy at the next election to the House of Representatives. Laws 1927, ch. 204, p. 258.
The present statute is identical.
Kentucky first provided for filling vacancies at the next Congressional election. Acts 1914, ch. 25, pp. 98, 99.
The present statute is identical.
Louisiana first required the governor to issue a writ within ten days of the occurrence of the vacancy, the election to be held within 90 days thereafter. Acts 1914, No. 241, pp. 471, 472.
The present statute is identical.
Maine first required an election before the next session of Congress, or “forthwith” if Congress was in session. Act 1915, ch. 55, pp. 35-36.
The present requirement is for the vacancy to be filled at the first general election preceded at least by the primary plus sixty days.
Maryland first provided for the vacancy to be filled in the next general election for the state assembly or for members of Congress. Laws 1914, ch. 761. In those days members of the general assembly were elected every odd year.
The present statute uses the formula next “general congressional election.”
Massachusetts first required the governor to issue a precept to hold an election “on the day appointed therein.” Stat. 1913, ch. 835, pt. iv, § 336, p. 1059.
The present requirement is for the vacancy to be filled at the first biennial election whose primary falls more than 70 days after occurrence of the vacancy.
Michigan first required the vacancy to be filled at the first general election more than 120 days after the occurrence
The current provisions are identical.
Minnesota first provided for the vacancy to be filled at the next general election, which took place every two years. Laws 1913, ch. 520, § 8, pp. 756-758; Gen. Stat. 1913, ch. 6, § 298.
The present requirement is for the vacancy to be filled at the next biennial state election whose primary falls at least 60 days after occurrence of the vacancy.
Mississippi first required a special election within 90 days unless there was a general election the same year, or unless there was less than one year left in the term. Laws 1914, ch. 148, § 3, pp. 192, 193.
The current statute is identical.
Missouri now provides, and has always provided, for executive appointment “until a successor shall have been duly elected and qualified according to law.”
Montana first required a vacancy to be filled at the next general election, which was held every even year. Laws 1915, ch. 126, pp. 281, 282; Rev.Code ch. 44, § 531 (1921).
The current statute is identical.
Nebraska first required the vacancy to be filled at the first election for state officers more than 40 days after it occurred, and held such elections in even years. Laws 1917, ch. 39, pp. 117, 118; Laws 1913, ch. 149.
The present statute is identical.
Nevada first required vacancies to be filled at the next general election, which was held every two years. Laws 1915, ch. 65 pp. 83-84; Acts 1873, ch. 121.
The present statute is identical.
New Hampshire first provided for the vacancy to be filled at the next general election, which was held every even year. Laws 1915, ch. 29, p. 32; Laws 1909, ch. 153.1.
The present statute is identical.
New Jersey first required the vacancy to be filled at the next general election which was more than 30 days after the occurrence of the vacancy, but the governor had discretion to call a special election earlier. There was a general election every year. Laws 1920, ch. 349.
The present statutes are identical.
New Mexico first required the vacancy to be filled at the first general election at least thirty days after the occurrence of the vacancy. Laws 1915, ch. 27. General elections were held every even year.
The present statutes are identical.
New York first provided that the vacancy be filled at the first annual general election held 30 or more days after the creation of the vacancy. Laws 1913, ch. 822.
The current law provides that the vacancy be filled in the first even-numbered year in which 60 days or more intervene between the creation of the vacancy and the June primary.
North Carolina first required the election to be held at the first general election more than 30 days after the vacancy. Laws 1913, ch. 114, p. 206. These elections were held every even year. Laws 1901, ch. 18, § 3.
The present statute requires the vacancy to be filled at the next election for members of the general assembly held more than 30 days after the vacancy occurs. The general assembly is elected in
North Dakota first provided for the vacancy to be filled “at the next State wide election whether June primary or general election.” Laws 1927, ch. 138, pp. 175-76. In every even year there was a primary in June and a general election in November. Laws 1892, H.B. No. 1, § 1.
At present the requirement is for filling of vacancy at the next state-wide election.
Ohio first required the vacancy to be filled at the next state election more than 180 days after its occurrence. Laws 1914, H.B. No. 3, p. 8. These elections were held in even numbered years. Laws 1913, p. 23.
The present statutes are essentially similar.
Oklahoma first required the vacancy to be filled at the next primary and general election. Laws 1915, ch. 49, pp. 69-70. These elections were held every two years. Laws 1907-8, S.B. No. 23.
This statute was repealed by Laws 1965, ch. 116, § 4.
Oregon first provided that the governor‘s appointee shall serve until a United States Senator is regularly elected and qualified. Code § 236.130; Laws 1915, ch. 48, p. 59.
Today the vacancy is to be filled at the next general election held more than 20 days after the vacancy occurs.
Pennsylvania first provided for filling the vacancy at the first general election whose primary occurred more than 60 days after the vacancy. Laws 1913, No. 454. There was a general election every even year.
The present requirement is for the vacancy to be filled “at the next general or municipal election, occurring at least ninety (90) days after the happening of such vacancy.”
Rhode Island first required a special election “at as early a date * * * as will admit of compliance with the provisions of law in relation to such elections“. Laws 1914, ch. 1048, § 6.
The present statutes provide for filling the seat at the first general election at least 70 days after the vacancy, and for holding general elections in even-numbered years.
South Carolina first provided for a special election within 90 days. Laws 1914, ch. 337.
The present statutes provide for general elections in even-numbered years, and require any vacancy to be filled at the first general election more than 100 days after the vacancy.
South Dakota first provided for filling vacancies at the “next general election,” and required these to be held every even-numbered year. Laws 1915, ch. 182;
The present provision is for filling vacancies at the next general election which is preceded by sufficient time to allow compliance with the regular nominating procedures, which include a primary.
Tennessee first required the vacancy to be filled at the “next regular biennial election.” Acts 1913, ch. 8, § 3.
The current statute is identical.
Texas first required a special election within 90 days unless the vacancy occurred within eight months of a general election. Acts 1913, ch. 39.
Utah first required a choice at the “next regular election to be held in the State of Utah for the Federal House of Representatives.” Laws 1915, ch. 48.
The present requirement is for the choice to be made at the next general election, which must be held in an even-numbered year.
Vermont first required the vacancy to be filled at the next general election, which took place every even-numbered year. Acts 1915, No. 7; Const. Arts. 35, 36.
The present statute requires the governor to call a special election, but also provides that if the vacancy occurs in a general election year before the general election, it shall be filled then.
Virginia has always provided for filling vacancies at the next “November election” and for holding these elections annually.
Washington first provided only that “the Governor shall issue a writ of election to fill such vacancy, which writ shall fix the time for such election not less than twenty-five days after the issuance thereof.” Laws 1915, ch. 60, p. 232. We classify this statute as requiring a special election within one year.
The present statutes require the vacancy to be filled at the next state general election, which is held every even-numbered year.
West Virginia first provided for filling the vacancy at the next general election, and for holding those elections every year. Laws 1921 ch. 101, § 1; Laws 1891, ch. 89.
Present statutes allow appointment for the balance of the term if that is less than thirty months, and otherwise until the next general election, which is held in even-numbered years.
Wisconsin first provided for the vacancy to be filled at the next general election if the governor did not call a special election before then. Laws 1913, ch. 634, § 94k. General elections were held every two years.
The current statutes require the vacancy to be filled in the next biennial general election year in which the vacancy occurs at least 60 days before the July primary.
Wyoming first provided for filling the vacancy at the next general election, which was held in even years. Laws 1913, ch. 91, § 1;
Current law provides for filling the vacancy at the first general election whose primary occurs at least 40 days after the vacancy.
DISSENTING OPINION
FRANKEL, District Judge (dissenting):
The loud, clear, and supreme command of the
This is an unprecedented extension of the “temporary” appointive power. It is sanctioned today in what appears to be the first judicial scrutiny of the pro-
The majority‘s result is also thought to find support in the unconsidered, untested enactments of some state legislatures, none of which appeared, even on their surface, to go as far as New York‘s officials now claim a right to go in blocking the popular will. But perhaps the most remarkable thing of all is that the revered principle of government “by the people,” so clearly at the heart of the
I.
The most powerful, and probably sufficient, arguments against defendants’ position are found in the words of the
“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.”
One or two features of that language and its setting are notable for our purposes:
- The power of executive appointment was to arise only during a recess of the legislature, and appointments under that authority were not to survive the next session of the legislature.
- State legislatures as the Founders knew them met annually.1 Thus, an executive appointee to the Senate could practically never have been expected to hold office for more than a year before the primary method of selection, by the legislature, was once again en-
Thus, when the
Further illumination from the original Constitution is found in its provisions respecting the House of Representatives. Members of the House were, of course, elected “by the people” from the beginning (
“When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”
Again, it seems useful to note specifically some pertinent thoughts generated by this cognate provision:
- Though House terms were never to last more than two years, the state executive was and is directed to (he “shall“) order elections to fill interim vacancies.
- The mandatory language of the
Seventeenth Amendment , saying the executive “shall issue writs of election to fill such vacancies,” duplicates the language applicable from the beginning to the House. - Neither the governor nor the people are ever in “recess,” and it appears that no need was perceived to have recess appointments during the presumably brief period required to fill the vacancy by popular election.
- Since each state was to have only two Senators, and each was to represent the State as a whole, a Senate vacancy would in most cases effect a greater proportionate loss of representation than would a vacancy in the House. See 2 Farrand, The Records of the Federal Constitution of 1787 at 231 (Madison‘s notes) and 242 (King‘s notes) (rev.ed. 1966). Cf. H.R.Rep. No. 88, 56th Cong., 1st Sess. 4-5 (1900). Accordingly, by providing for executive appointments, the framers undertook to ensure that there would be no Senate vacancies even during the state legislative recesses of less than a year.
Both the original provision respecting temporary appointments for Senate vacancies and the House provision for elections to fill vacancies were combined in significant fashion when the
“The only other change that is proposed to be made in the Constitution as it is now is a provision for the filling of vacancies. The Constitution as it now reads, referring to vacancies in the Senate, says:
‘And 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.’
“Instead of that, I provide the following:
‘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.’
“Which is exactly the language used in providing for the filling of vacancies which occur in the House of Representatives, with the exception that the word ‘of’ is used in the first line for the word ‘from,’ which, however, makes no material difference.
“Then my substitute provides 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.’
“That is practically the same provision which now exists in the case of such a vacancy. The governor of the State may appoint a Senator until the legislature elects. My amendment provides that the legislature may empower the governor of the State to appoint a Senator to fill a vacancy until the election occurs, and he is directed by this amendment to ‘issue writs of election to fill such vacancies.’
“That is, I use exactly the same language in directing the governor to call special elections for the election of Senators to fill vacancies that is used in the Constitution in directing him to issue writs of election to fill vacancies in the House of Representatives.” 47 Cong.Rec. 1482-83 (1911).
That “one brief reference” does not stand alone. Like the final version of the Amendment, its precursors characteristically took from the Constitution the words relating to House vacancies (in
Of greatest interest, however, is the language sponsored and explained in 1892 by Representative Henry St. George Tucker, who proposed an amendment for the popular election of Senators with a vacancy provision identical to the ultimately ratified text, except for the unexplained omission of a comma in the latter.7 Explaining the proposed language, Congressman Tucker‘s Report, H.R.Rep. No. 368, 52d Cong., 1st Sess. 4-5 (1892), said:
“Where vacancies occur the executive of the State shall direct writs to issue for holding the election by the people to fill the vacancies; or, by law, the legislature may empower the executive to fill the same temporarily until an election can be had.
“Under this clause the governor must order an election to fill the vacancy that has occurred. This preserves the principle of election by the people. In some States, however, in which there are annual elections, this would be a hardship, for the vacancy would in most cases not be of long duration, and to add another State election would be imposing an unnecessary expense on the people, so that the proviso was thought to be wise by which the governor may be empowered to fill the vacancy ‘until the people fill the vacancy by election, as the legislature may direct.’
“Under this provision in a State where there are biennial elections the legislature might direct that if a vacancy occurred within a year [or any other period it might fix] after the election, the vacancy should be filled by an election by the people; but if the vacancy occurred more than a year after the election the vacancy should be filled by executive appointment. This optional feature in the filling of vacancies was as far as your committee deemed it prudent to go in this direction.”
That predecessor explanation, undoubtedly well known to the later legislative leaders who copied the Tucker proposal with which it went,8 was a clearly sensible and apt description of what the language was meant to accomplish. No other or different account was given for the substantially identical language later passed and ratified. Without pretending to use jeweler‘s scales, we must surely acknowledge that some weight attaches to the quoted words. And this item, like many others, is opposed to defendants’ position.
It fits perfectly with the language and surroundings of the vacancy provision to say, as Congressman Tucker did, that the state legislature was authorized to “empower the executive to fill the same temporarily until an election can be had.” Not, as defendants argue, until the end of any time short of six years which the state legislature might choose to deem “temporary.” More specifically, Mr. Tucker, properly emphasizing the controlling “principle of election by the people,” but yielding to the countervailing “expense on the people” of repeated elections in a single year, explained the “optional feature” as permitting appoint-
Other items of pertinent history point in the same direction. Among the Founders themselves, the device of gubernatorial appointment was deprecated as a somewhat dubious expedient; there was skepticism as to whether “executives might be safely trusted” with such power, which, one member observed, would remove “the appointment too far from the people * * *.” Such doubts appear to have been overridden only “in order to prevent inconvenient chasms in the Senate.” 2 Farrand, The Records of the Federal Convention of 1787 at 231 (Madison‘s Notes) (rev. ed. 1966).
In the event, as we know, balancing legislative power against the executive, the Founders apparently deemed it tolerable to accept appointments likely to last less than a year precisely because they were to be effective only “for so short a time.” Ibid.
Preserving this narrow view of the appointing power, the Senate itself, in the years before the passage of the
While the documentation is by no means conclusive, there is substantial evidence to indicate that those who pressed for the
“Never in the history of the Senate, it can be creditably said, has that body seated a person seeking admission by appointment from the governor after the legislature of the state had failed to elect.” H.R.Rep. No. 88, 56th Cong., 1st Sess. 5 (1900).9
The same reports reflected a grudging and narrowly confined view of the power to be given the Governor under the new provisions for popular elections. They observed that in the existing scheme of legislative designation of Senators,
“‘the governor of a State and his friends, by cabal, intrigue, and maneuver may so arrange that the legislature will decide not to elect, or would fail to elect, in order that the governor might gather to himself the power to fill the vacancy.‘” H.R.Rep. No. 88, supra at 6; H.R.Rep. No. 125, supra at 6.
They expressed a determination to thwart expansions of the gubernatorial power over vacancies and to make it “impossible to defeat the will of the people * * *.” Ibid.
While the quoted words were written in 1900, and again in 1902, they reflected sentiments that appear to have remained active in the final stages leading to the
The historical materials I have mentioned are of special interest when it is
II.
I arrive, finally, at what is center stage in this case, the text of the
“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
“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.”11
The vital substance of the change this Amendment wrought was its provision that the Senators of a State should be “elected by the people thereof * * *.” Where the occasion arises to say what it is about, capturing its essence, we are likely to observe that “when Senators are chosen, the
It is vital to dwell upon and to apprehend fully that this broadening by the
Following the primary mandate for popular election in its first paragraph, the second paragraph of the Amendment begins with the same major and preferred procedure as the means of filling vacancies, namely, by “writs of election * * *.” It is only thereafter that the expedient here in question is permitted, as a proviso, in the authorization saying “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 two clauses together end as they begin, with the reasserted power of “the people * * * by election” to terminate the temporary appointment and install their choice.
So we have in sum a six-year term to be filled by the people; vacancies to be similarly filled; and a power to make “temporary appointments” only until state officials, sworn to obey the Federal Constitution, can make suitable arrangements for the popular will to be expressed. It is, as has been acknowledged, not possible to find in the text alone an explicit prohibition against a “temporary appointment” extending for almost half the six-year term. What is less possible, however, is to accept that the words, and the order of words, comprising the
Undertaking, as we must, to expound a Constitution, we could not readily find complete answers in interpretative “can-
Another guide to construction is even more specifically and substantively pertinent. Long before the passage of the
Even on a rather general approach to problems of construction we should be disposed to find the same premise in the
An indication of a similar sort is found in the Constitution of New York State itself, which provides that an appointee filling a vacancy in an elective office may serve no more than approximately a year—or, to be absolutely precise, a conceivable maximum of just un-
III.
The majority decision for defendants rests upon three main grounds: (1) “clear language” found in the
1. The textual argument is stated firmly, but not dwelt upon, in the majority opinion. It need not be labored in this dissent.
The
“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.”
Rejecting plaintiffs’ “subtle reading” for a more “natural reading,” the majority finds in these words “some reasonable measure of discretion” supposedly ample to encompass what New York has done.
However, as the majority notes elsewhere, the “clear” meaning of the language to the man who presented it—the meaning he announced to the Senate which passed it—supports plaintiffs rather than defendants. Likewise, an identical predecessor was explained by its author contrary to the majority‘s interpretation. Far from answering our question, we only state it, acceptably all around, when we speak of a “reasonable discretion” left to the state legislatures. The majority‘s Tables and Appendices, enlisting so unlikely a body of authority on the Federal Constitution as unannotated state statutes, could hardly be thought relevant if the words “as the legislature may direct” went very far toward a solution.
2. I come to the “contemporaneous interpretations” in the form of state statutes by which the majority has been “strongly influenced.” There are many considerations, in my view, which should have served to weaken or dissipate the influence of this argument. I outline these thoughts in roughly ascending order of importance.
For one thing, these so-called “interpretations” consist only of the bare texts of various (and varying)14 state statutes
Even taking those texts by themselves, we find only five states whose statutes passed between 1913 and 1915 would seem literally to have allowed “temporary appointments” extending for more than two years.16 And it is interesting to recall that New York was clearly outside this category; until 1951 its statutes would have required an election of Senator Kennedy‘s successor within less than five months after his death, on November 5, 1968.
Going slightly beyond the state statutes to actual experience, we find a total appearance of inconsistency is superficial only, but it does suggest how treacherous and ambiguous a guide to the Federal Constitution is supplied by collections of state statutory texts by themselves, with no illumination in the form of debates, court tests, or other sources of live understanding.
of 156 gubernatorial appointments to the Senate in the years from 1913 through the beginning of 1967.17 Of these, 109 (70%) ran for no more than a year; 128 (82%) for no more than 18 months; and 154 (98.7%) for no more than two years.18 Measuring the period from inception of the vacancy to end of appointment (corresponding to the period of just under 30 months from Senator Kennedy‘s death on June 6, 1968, to the end of Senator Goodell‘s term on November 30, 1970, as announced by Governor Rockefeller), 106 (68%) of the recorded appointments would fall into the category of no longer than a year; 124 (80%) no longer than 18 months; and 152 (97%) no longer than two years.19 In short the actual experience of temporary appointments in the 55 years since the
That experience may serve as partial explanation why neither counsel nor judges have found square precedents to guide us.20 But the important point
The absence of judicial or other contests over those state statutes is more than a negative generality; it is, in our context, a factor of potentially critical significance. For, as we have mentioned earlier, there is an old and salutary presumption favoring compression of appointive terms in elective offices. While New York‘s law officers now treat their State‘s constitutional embodiment of this principle as a protector of popular sovereignty only for state offices, we may suppose that other state officials and state courts might have applied the same bedrock doctrine to the Senate of the United States under the
Moving onward, we come to some important principles and recent precedents five days after the regular biennial state election and the appointee was to serve from November 13, 1924 to November 2, 1926, the Democrats threatened to seek the repeal of the Massachusetts statute on the ground that the appointment thus permitted was not “temporary.” 1 Haynes, The Senate of the United States 166-67 n. 2 (1960).
impairing the supposed vigor of state statute books as authorities on Federal Constitutional Law. While the majority speaks of “contemporaneous interpretations” as the essence of this point, it bears emphasis that the great bulk of the statutes supposedly favoring defendants (like New York‘s own) post-date by long periods the adoption of the
3. Let us talk now of the “state interests” deemed so “substantial” by the majority that they justify a “temporary appointment” which will leave to “the people * * * by election” only the power to fill the last month of the 32
that remained of Senator Kennedy‘s term when he was murdered.
As it is appealingly described by the State‘s Attorney General, one such supposedly weighty “interest” emerges from this proposition: “The selection of a candidate in a primary election and the election of the Senator at a general election in either a gubernatorial or presidential [i. e., even-numbered] year insures the greatest numerical participation of voters in the selection of the Senator.”23 The troubles with the sentence are:
- When
§ 296 was enacted in its present form (N.Y.Laws 1951, ch. 257), there was no direct primary election for Senator. Such primaries, still somewhat restricted in nature, were not created until 1967. Laws 1967, ch. 716, § 2, effective January 1, 1968.24 So all the talk in defendants’ brief and the majority opinion extolling the virtues of primaries has nothing to do with the case because this could not conceivably have been any supposed part of the unannounced “interests” leading to the 1951 enactment before us. - The asserted striving for “greatest numerical participation of voters” results, in the concrete (and only) cases before us, in (a) no participation by any voters, and (b) the selection of a Republican appointee to complete well over two years of a term to which a Democrat had been elected by the people.25
but adds what I think is a strange embellishment. Since local elections occur in odd-numbered years (as Senate vacancy elections could and did until 1951), we are told that “[t]he legislature might reasonably have concluded that local elections should be preserved from the more party-oriented political currents generated by statewide or national contests.” When we talk about what the State Legislature “might * * * have concluded,” since we have not a single word from a single legislator about what actually went on, the quality of speculation is not cramped.
This does not mean, of course, that the question of expense is immaterial. It means only that the subject must be kept in proportion. It is one thing to say “expense” and feel that this goes some distance to justify an extravagant postponement, for 2½ years, of a popular election. It is another, far more useful, far more pertinent thing to recall that Congressman Tucker, author of an identical predecessor to the provision we are construing, considered expense and deemed it a sufficient concern to permit the States, along traditional lines, to decide against the holding of more than one election in a single year.
Times have changed since 1892, and since 1913, but not in any way that makes money a more legitimate counterweight today against the value of popular elections. We are more affluent. Campaigning costs more. The problem
But this particular thought seems to me particularly imaginative, extending beyond what the State Attorney General and Solicitor General recreated on behalf of the defendant Governor and Secretary of State.
of campaign expenses is real and troublesome. The problem has generated many proposed solutions, but rarely, if ever, the idea that for this reason interim appointments, postponing popular elections, should be for longer periods.26 It is not jingoistic or inapposite, considering our subject, to mention how sternly this century is testing our professed ideals. It may be supposed, therefore, that a people spending millions for jingles about toothpaste will not need to sacrifice or shrink the principle enshrined in the
To summarize it, my view about the “substantial state interests” stressed by the majority is that they are at least in some degree exaggerated; that the supposed benefits sought by the State in
IV.
The majority, sustaining a delay of 2½ years, is not required to decide, and does not decide, how much longer even
While this conclusion would require a determination that a state legislative provision must be set aside in deference to the Federal Constitution, this surely would rank among the least exacerbated instances of such friction. Of course, the
Finally, because the case appears destined for the Supreme Court, I complete this dissent with a few words about the defense suggestion that the Governor is not subject to an order in the nature of mandamus.27 If we reached the suggestion, all three of us have surmised with confidence that we would reject it. “The applicable principle is that, where state officials, purporting to act under state authority, invade rights secured by the Federal Constitution, they are subject to the process of the federal courts in order that the persons injured may have appropriate relief. * * * The Governor of the state, in this respect, is in no different position from that of other state officials.” Sterling v. Constantin, 287 U.S. 378, 393, 53 S.Ct. 190, 193, 77 L.Ed. 375 (1932). Nothing in the New York cases defendants cite limits the scope of “appropriate relief” to forms outside the area traditionally called “mandamus.”
But it would prove unnecessary to consider this subject at all—including the debatable assumption that the pertinent writ might resemble mandamus. As we could have predicted, the Governor has given his assurance, through his Solicitor General, that a final judgment in this case declaring the constitutional rule will be followed by him and the other responsible officials of the State. There would be no need, therefore, to go beyond the plaintiffs’ prayer for declaratory relief.
I would grant the prayer and adjudge that
Notes
“The times, places, and manner of holding elections for Senator shall be prescribed in each State by the legislature thereof. 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.” H.R.Rep. No. 368, 52d Cong., 1st Sess. 1 (1892).The vacancy provision in this latter paragraph is identical to the one incorporated in the
“Mr. Wilson objected to vacancies in the Senate being supplied by the Executive of the States. It was unnecessary as the Legislatures will meet so frequently. It removes the appointment too far from the people: the Executive in most of the States being elected by the Legislatures. As he had always thought the appointment of the Executives by the Legislative department wrong, so it was still more so that the Executive should elect into the Legislative department. Mr. Randolph thought it necessary (in order) to prevent inconvenient chasms in the Senate. In some States the Legislatures meet but once a year. As the Senate will have more power, and consist of a smaller number than the other House, vacancies there will be of more consequence. The Executives might sagely be trusted (he thought with the appointment for so short a time.) (Emphasis supplied) * * * * * On the question for striking out ‘vacancies shall be supplied by Executives’ * * * * *2 Farrand, The Records of the Federal Convention of 1787 at 231 (Madison‘s notes) (rev. ed. 1966). Two appointees served for approximately 25 months. Senator William M. Butler of Massachusetts served by appointment from November 13, 1924, to December 5, 1926. Senate Manual, supra, at 689. Senator Joseph H. Ball of Minnesota was appointed on October 14, 1940, and served until November 17, 1942. Senate Manual, supra, at 691.
“Where vacancies occur the executive of the State shall direct writs to issue for holding the election by the people to fill the vacancies; or by law, the legislature may empower the executive to fill the same temporarily until an election can be had. Under this clause the governor must order an election to fill the vacancy that has occurred. This preserves the principle of election by the people. In some states, however, in which there are annual elections, this would be a hardship, for the vacancy would in most cases not be of long duration, and to add another State election would be imposing an unnecessary expense on the people, so that the proviso was thought to be wise by which the governor may be empowered to fill the vacancy ‘until the people fill the vacancy by election, as the legislature may direct.’ Under this provision in a State where there are biennial elections the legislature might direct that if a vacancy occurred within a year [or any other period it might fix] after the election, the vacancy should be filled by an election by the people; but if the vacancy occurred more than a year after the election the vacancy should be filled by executive appointment. This optional feature in the filling of vacancies was as far as your committee deemed it prudent to go in this direction.” H.R.Rep. No. 368, 52d. Cong., 1st Sess. 5 (1892).We owe, and cheerfully pay, deference to state legislatures in their proper spheres. This is not a mandate, or even a license, to ignore what everybody, including judges, knows. Sitting as the first level of the judiciary responsible for saying authoritatively what the Federal Constitution means, we are compelled to know how poorly state legislative proceedings are geared for an authoritative share in the task. Deliberation and scholarship, let us admit, do not characterize the frequently hectic activities of these bodies. For references to the well known facts, see, e. g., Keefe, “The Function and Powers of the State Legislatures,” and Wahlke, “Organization and Procedure,” in The American Assembly, State Legislatures in American Politics, at 65-68 and 145-48, respectively (Heard ed. 1966); Keefe and Ogul, The American Legislative Process 126-28, 177-78, 191-93, 206-10, 244-48 (1964). For the proposition that even the national Congress, far superior in this respect, tends usually to leave constitutional questions for the courts, see generally Morgan, Congress and the Constitution (1966). The point is illustrated by reference to some statistical records, which are the only kind available, relating to the context of the state statute before us. N.Y. Election Law § 296 was passed by the Assembly on March 15, 1951, the next-to-last day of the session. The Assembly on that day considered 124 bills and 10 resolutions. 123 of the bills and all of the resolutions were passed. 99 of the bills were passed with no negative votes. N.Y. Assembly Journal, 174th Sess., vol. 3, pp. 2779-2954 (1951). § 296 was passed by a vote of 85-62. Id. pp. 2918-19. On March 16, the last day of the session, the Senate passed § 296. It was one of 175 bills considered in the Senate on that day, along with 14 resolutions. 173 of the bills and all of the resolutions were passed. 157 of the bills were passed with no negative votes. N.Y. Senate Journal, 174th Sess., vol. 2, pp. 2008-2158 (1951). § 296 was passed by a vote of 38-23. Id., p. 2039. The Governor approved § 296 on March 24, 1951. He signed 86 bills on that day.
“The only other change that is proposed to be made in the Constitution as it is now is a provision for the filling of vacancies. The Constitution as it now reads, referring to vacancies in the Senate, says: ‘And 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.’ “Instead of that, I provide the following: ‘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.’ “Which is exactly the language used in providing for the filling of vacancies which occur in the House of Representatives, with the exception that the word ‘of’ is used in the first line for the word ‘from,’ which, however, makes no material difference. “Then my substitute provides 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.’ “That is practically the same provision which now exists in the case of such a vacancy. The governor of the State may appoint a Senator until the legislature elects. My amendment provides that the legislature may empower the governor of the State to appoint a Senator to fill a vacancy until the election occurs, and he is directed by this amendment to ‘issue writs of election to fill such vacancies.’ “That is, I used exactly the same language in directing the governor to call special elections for the election of Senators to fill vacancies that is used in the Constitution in directing him to issue writs of election to fill vacancies in the House of Representatives.” 47 Cong.Rec. 1482-83 (1911).Appendix to the Supplemental Brief for the United States as Amicus Curiae at 160-393, Brown v. Board of Education, supra.