New Jersey State Senator Shirley Turner’s bill to provide that vacancies in the U.S. Senate must be filled (by gubernatorial appointment) with a member of the same party as the ex-Senator is logically and constitutionally flawed. The bill, SB 2857, says “The appointee shall be from the same political party as the person vacating the office and shall have been a member of that political party continuously for a period of four consecutive years immediately prior to the appointment.”
The first flaw is that the former U.S. Senator might have been an independent, or the nominee of an unqualified party. Yet the bill seems not to account for that possibility. There are currently two independent U.S. Senators in the Senate now, so this omission seems thoughtless.
The second flaw is that the bill would exclude any appointee who had not been a registered voter for the preceding four years. Yet the Ninth and Tenth Circuits have ruled that states cannot require congressional candidates to have been a registered voter, because that adds to the constitutional qualifications to hold office in Congress, and states don’t have the power to add to the qualifications listed in Article One of the U.S. Constitution.
The bill is also vague about whether the ex-Senator’s party affiliation on the day he or she resigns controls, or whether the ex-Senator’s party affiliation on the day he or she was last elected controls.
US Term Limits v. Thornton said the same thing about states adding qualifications.
Congress should require a special election to fill a vacancy in the office of Representative or Senator to occur within 60 days of the vacancy. All candidates will be placed on the ballot, with a runoff following in 4 weeks if no candidate receives a majority.