Rightfully yours

President-elect Barack Obama, the Illinois Democratic Senator whose term expires in 2011, has said he will not dictate his appointed replacement, but did explain that his replacement should fulfill what he would want as a voter – capable and passionate about helping Illinois families.

The Seventeenth Amendment to the U.S. Constitution allows the governor of the state to make a temporary appointment to the Senate seat until the state legislature calls a special election.  There is no time limit, and many times the legislature will wait until the next scheduled election day to elect.

The Amendment clause covering this situation reads:
“When vacancies happen in the representation of any State in the Senate, the executive authority of each 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.”

This is a political plum for the governor who appoints. He may choose whoever he likes or can do him the most political good.

The star of this particular political rodeo is Illinois Governor Rod Blagojevich. His job approval rating was put at 13% last October by the Chicago Tribune, the lowest rating ever in their polling history. One of the reasons is that his administration has become enmeshed in the tangle of several federal criminal investigations.

Since Barack Obama is currently the only African-American Senator, and Blagojevich is under tremendous pressure from African-American voters, who have been some of his strongest supporters, to appoint an African-American replacement.

The strongest candidate seems to be U.S. Representative Jesse Jackson Jr. who was the Democratic national campaign co-chairman, and he has been publically lobbying for the Senate appointment since well before the Presidential election. But political insiders claim that Jackson and Blagojevich are barely on speaking terms.

Washington Democrats are pushing for Tammy Duckworth, an Asian-American who could be a racial compromise for the seat. Duckworth is director of the Illinois Department of Veterans’ Affairs, a disabled Iraqi war veteran, and reportedly close to both President-elect Obama and the newly appointed White House chief of staff, Rep. Rahm Emanuel.

A third candidate might be Attorney General Lisa Madigan. But Blagojevich has a hostile relationship with Madigan’s father, Michael Madigan, the Illinois House Speaker and Chairman of the Democratic Party of Illinois who has drafted possible impeachment proceedings against the governor.

Naming Lisa Madigan to the Senate would eliminate her as a potential challenger to the governorship election in 2010 if Blagojevich decided to run for re-election.

The maneuvering continues.

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Vice President-elect Joe Biden, the Delaware Democratic Senator whose term expires January 3, 2009, but was also re-elected on November 4 for another 6-year term, will be a candidate for a governor appointment.

Who will appoint the temporary Senator, as well as who will be appointed is a political mystery. The current governor of Delaware, Ruth Ann Minner will end her term on January 20, 2009, having served two full four-year terms.

If Biden resigns prior to January 6, the start of the new Congressional term, and the appointee is named prior to that date as well, Biden’s successor will have slightly more seniority than any new Senators who take office on January 6, and have more choices in office space, committee assignments and parking.

If Biden doesn’t resign prior to his swearing in as Vice President, he will automatically create a vacancy in the Senate as soon as he becomes Vice President, since Article I Section 6 of the U.S. Constitution prohibits simultaneously holding office in any two branches of government.

When Governor Minner ends her term the task of appointment falls to her successor, Jack Markell. The only real time requirement is that Delaware law requires a special election two years after a Senate appointment.

Some believe that Vice President-elect Biden wants a Senate placeholder who will perform the job, but not well enough to get elected on his own. By the time the special election approaches, Joe Biden’s son, Captain Beau Biden will have returned from Iraq, resumed his place as Delaware Attorney General, and mounted a campaign to take the seat in the 2010 election.

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There were two special elections in November 2008: one in Wyoming and another in Mississippi; the winners will serve the remainder of terms that expire on January 3, 2013.

The special election in Wyoming resulted from the death of Republican Senator Craig L. Thomas in a plane crash, June 4, 2007. The special election was a rarity among elections in that both Senatorial seats in a state are up for election at the same time.

Republican John Barrasso was appointed by Democratic Governor Dave Freudenthal on June 22, 2007 to fill Thomas’ Senate seat. Wyoming law requires that the appointed Senator come from the same political party to maintain party balance.

Barasso officially won the seat on Election Day, taking 73% of the vote and winning every county in the State. His term ends in 2013, the same as Thomas’ term, reestablishing the states timing of Senate elections. The other Senator was Republican incumbent Mike Enzi, who was elected to a six-year term, ending in 2015.

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A simultaneous election was also held in 2008 in Mississippi, where Republican Senator Trent Lott‘s retirement from the Senate in December of 2007 to become a Washington-based lobbyist forced a special election. On December 31, Mississippi Governor Haley Barbour appointed U.S. Representative Roger Wicker to fill the Senate seat vacated by Lott. In the November 2008 election, Wicker ran and was elected to finish Lot’s term that ends in 2013.

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In Alaska, Senator Ted Stevens is the longest serving Republican in the Senate, serving that office since December 1968. U.S. Senator , when he was appointed to the position following the death of U.S. Senator Bob Bartlett and has not lost a re-election campaign since.

Stevens was indicted in July 2008 by a federal grand jury on seven counts of failing to report on his Senate financial disclosure forms, gifts received from VECO Corporation and its CEO Bill Allen. He was also formally charged with violation of the Ethics in Government Act.

Just before the election, Stevens was found guilty on all seven counts. On Election Day, Stevens’ Democratic opponent, Anchorage Mayor Mark Begich tallied a victory by THREE votes.

Who said your vote doesn’t count?

As of November 12, Alaska’s Division of Elections is recounting the votes.

If Senator Stevens is re-elected to an eighth consecutive term, he will become the first first convicted felon ever to be elected to the United States Senate. His sentencing is scheduled for February 25, 2009, and although he faces a maximum of five years per charge, it is unlikely he will spend much time in prison. His attorneys will file motions to overturn the verdict by early December, and he can still be pardoned by President Bush.

If Senator Stevens is re-elected and attempts to take his seat, Senate Majority Leader democrat Harry Reid stated he would schedule a vote to have Stevens expelled, saying, “a convicted felon is not going to be able to serve in the United States Senate.”

No sitting Senator has been expelled since the Civil War.

If Stevens is re-elected and resigns or is expelled, it would force a special election and Governor Sarah Palin would make a temporary appointment to hold the seat until a new senator is elected in November 2014.

There is speculation that former Vice Presidential candidate Palin may either appoint herself to the position or run for the Senate seat in 2014.

Advocates of a 2004 citizen ballot initiative contend that the measure when passed deprived the Governor of the right to make Senate appointments.

The initiative was passed after Governor Frank Murkowski relinquished his Senate seat (term ending 2005) after being elected governor in 2002, and promptly appointed his daughter Lisa to fill his former Senate seat. She was narrowly elected to her own term 2004.

The initiative never became law. Under the laws governing the initiative process in Alaska, citizens of Alaska may initiate legislation through the process of indirect initiative legislation but they may not amend their constitution or directly propose legislation.

I never thought politics was this exciting.

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In South Dakota, Democratic Senator Tim Johnson‘s seat in 2008 was considered a top Republican target considering his recent health problems and Johnson’s slim 524-vote win in 2002 over current Republican Senator John Thune, who defeated incumbent Senator Tom Daschle in the 2004 election.

Johnson had surgery in December 2006 for a cerebral arteriovenous malformation and was released from the hospital four months later.

A Senator unable to represent their State because of long-term incapacity due to health or medical reasons creates a vacancy in the States representation just as any other reason, indicating that a vacancy is caused by the status of the Senate seat as well as the status of the Senator.

Senator Johnson’s ill health raised the possibility that, were he to die, the South Dakota Republican Governor Mike Rounds might appoint a Republican to fill his seat, shifting the Senate balance of power.

Johnson has since regained his health, and now continues his service in the Senate, being elected to a third term with a 62% majority.

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In Idaho, Republican Senator Larry E. Craig did not stand for re-election in 2008, following a devastatingly humiliating incident at the Minneapolis airport in June of 2007, where he was arrested and charged with soliciting sex from a man in the restroom. Admitting guilt, he pled guilty to a reduced charge. This event lost him all support among Republicans in his home state.

This spared Governor C. L. (Butch) Otter from appointing a replacement for Senator Craig. The election was held as scheduled and won by Republican Lieutenant Governor Jim Risch, a rancher and attorney, who was Governor of Idaho briefly in 2006.

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Last, but not least, Minnesota. In 2002, Democratic Senator Paul Wellstone died with his wife and daughter in a plane crash (along with two pilots, two staffers and his driver) just 11 days before Election Day.

The Democratic Party scrambled to find a ballot replacement and former Vice President Walter Mondale was selected but lost in a tight contest to Republican Norm Coleman.

When the memorial service for the late Senator Paul Wellstone turned into a Democratic political rally, Minnesota Governor Jesse Ventura appointed the Independence Party’s Dean Barkley to fill the seat for the month remaining in the term.

In 2008, Senator Coleman was challenged by comedian and former radio talk show host Al Franken, member of the Minnesota Democratic-Farmer-Labor Party (DFL) in a dead heat race.

The results of this Senate race were the closest in the country. Incumbent Coleman currently leads Franken by 206 votes. The outcome of the race remains too close to call, and will not be resolved until the state canvassing board completes a recount of the 2.9 million votes cast, which will take far into December. Independent Dean Barkley received 15% of the vote.

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End note: Article I, section 3 of the Constitution requires the Senate to be divided into three classes for purposes of elections. Every two years, Senators from one of the class face election for six-year terms. Terms for Senators in Class I expire in 2013, Class II in 2009, and Class III in 2011.

Newly elected Senators in Class II will have terms expiring in 2015. Special election terms are adjusted to return to the original expiration schedule.