Now What?

by Robert Thomas, InverseCondemnation.com

Hawaii's senior U.S. Senator, Daniel K. Inouye died today. We can't add much to the remembrances pouring in about this war hero, trailblazer, and political icon, so we'll just address what we know, the law regarding how the vacancy in the U.S. Senate will be filled. Mark Murakami and I did some quick research, and here is what we came up with.

The starting point is the Seventeenth Amendment to the U.S. Constitution, which provides, in relevant part:

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.

The "executive authority" under the Hawaii Constitution (article V, § 1) is the Governor. The Hawaii legislature has empowered the Governor to make a temporary appointment to flll the office in Haw. Rev. Stat § 17-1, as follows.

§ 17-1.  United States senator.
When a vacancy occurs in the office of United States senator, the vacancy shall be filled for the unexpired term at the following state general election; provided that the vacancy occurs not later than 4:30 p.m. on the sixtieth day prior to the primary for nominating candidates to be voted for at the election; otherwise at the state general election next following. The chief election officer shall issue a proclamation designating the election for filling the vacancy. Pending the election, the governor shall make a temporary appointment to fill the vacancy by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent. The appointee shall serve until the election and qualification of the person duly elected to fill the vacancy and shall be, at the time of appointment, and shall have been, for at least six months immediately prior to the appointment, a member of the same political party as the prior incumbent. The appointee shall be a resident of the state. If the prior incumbent was not a member of any political party, the governor shall appoint a person who is not and has not been, for at least six months immediately prior to the appointment, a member of any political party. All candidates for the unexpired term shall be nominated and elected in accordance with this title.

So, the next step is for the Chief Election Officer, Scott Nago, to issue a proclamation designating the election for filling the vacancy, presumably the General Election in 2014. But, it would be only for the unexpired term of Senator Inouye whose term was going to expire in 2016. Senator Inouye was a Democrat, so after Mr. Nago makes the proclamation, the Democratic Party of the State of Hawaii must provide a list of three prospective appointees for the appointment, and Governor Abercrombie must select the new temporary senator.

If the Governor picks a sitting member of the U.S. House of Representatives, pursuant to art. 1 of the U.S. Constitution and Haw. Rev. Stat. § 17-2, a special election is required to fill that vacancy. 

If the Governor picks himself to fill the Inouye seat, then the Hawaii Lieutenant Governor would become the Governor under Hawaii State Constitution art. V, section 4, and, by operation of Haw. Rev. Stat. § 26-2, the Senate President would become the Lieutenant Governor.

But putting aside the question of whether he should, can Governor Abercrombie appoint himself? Under the Hawaii State Constitution, "[t]he Governor shall not hold any other office or employment or profit under the State or the United States during the governor’s term of office." Art. V, Section 1. That language would make it tough to do directly.

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