Who Should Select Senators?
A century after the Seventeenth Amendment transferred that power to the voters, legislatures and governors are devising new ways to retain it for themselves.
by Garrett Epps, March 1 2015, The Atlantic (excerpt)
...Hamamoto v. Ige, which was just dismissed by Judge Derrick Watson of the District of Hawaii. The issue is another textual riddle: when the Amendment says that a legislature can “empower” a Governor to make appointments, can it also require the governor to choose from a specified list?
Here’s what happened: In November 2010, Hawaii’s voters elected Sen. Daniel K. Inouye to a ninth term. Two years later, in December 2012, Inouye died. Under Hawaii law, Governor Neil Abercrombie was required to name a temporary replacement from a list of three provided by the state Democratic Party. That replacement, Brian Schatz, ran for election to the remaining term in a special election in November 2014, and defeated Republican Campbell Cavasso by a margin of nearly three to one.
Just before that election, a Republican named John P. Roco brought a lawsuit alleging that Schatz’s appointment was unconstitutional. Roco was an odd plaintiff. He had wanted to be the Republican nominee—but he lost to Cavasso. In fact, he got only10 percent of the primary vote. It thus seems unlikely that any sequence of events would have made him the Senator. Nonetheless, he argued that the Seventeenth Amendment allowed the legislature to “empower,” not limit, the Governor. Abercrombie should have been able to name anyone he chose. Because Schatz had been selected from a group of three approved by the Democratic Party, he should be removed from office.
Roco soon dropped that demand, asking only a “declaratory judgment” that the Hawaii law was invalid. Judge Watson on February 23 dismissed the case, holding that it was past its sell-by date (or as lawyers say, “moot”). Roco and Hamamoto’s lawyers argued that the issue might arise again, but Watson rejected that argument, noting both that the plaintiffs waited nearly two years after Schatz’s appointment to bring their suit and that the legislature might change the statute before the situation arises again.
Should it? Vikram Amar, one of America’s foremost scholars of the Constitution’s text, believes that the plaintiffs are correct—a legislature can “empower” but not limit. Sanford V. Levinson of the University of Texas, equally or more eminent, disagrees.
Though they may seem arcane, these Seventeenth Amendment issues matter. Its strange wording allows legislatures to game the system....
Read ... The Atlantic
PDF: Order of Dismissal
Related: Government of the Legislature, by the Legislature, for the Legislature