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«Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment? ...»

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Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 745 evil blamed on the system of indirect election."69 Whether that widely held perception of corruption was justified is a more complicated matter. Haynes summarizes, [h]ow often resort has been had to bribery and corruption [in state legislatures] in connection with senatorial elections it is impossible to determine, but there is indisputable evidence that a number of legislatures were thus tainted in the interest of certain candidates, and that this tendency was not lessened but greatly increased after-if not because of-the enactment of the [federal] law of 1866 [that attempted to reduce the incidence of state legislative gridlock]... The only point to be noted here is that the increase of the evil [of legislative corruption] was one of the causes of the unrest and the popular belief, however unsubstantial may have been its foundation, that legislative election was at the root of this noxious growth. 0 One might argue that the undeniable concern over state legislative corruption shared by Seventeenth Amendment advocates would be a strong reason to read state legislative powers under Section 2 narrowly, and protect gubernatorial independence and discretion from legislative overreaching. I think ultimately such a pro-governor, anti-legislature reading is amply warranted, but I would caution not to overstress the rhetoric about legislative corruption in reaching this result. This is not because the rhetoric was overheated (after all, it did inform the perceptions of those who brought us the Seventeenth Amendment), but rather because when Seventeenth Amendment reformers discussed legislative dishonesty, they did not seem to compare the legislature to the purer, more trustworthy state "executive authority." That state legislatures were a natural target for charges of bribery and the like seems somewhat driven by the fact that legislatures-and not governors-were the ones picking Senators before the direct election movement succeeded."

69. Brooks, supra note 55, at 200.

70. HAYNES, supra note 57, at 91. See also Little, supra note 55, at 640-41 (quoting Senator Bradley: "[The original Constitution] was so framed... by its mechanism-as to permit corruption and successful rascality.").

71. I do note, however, in this respect, that at the federal level, one reason to prefer presidential autonomy in making appointments is the belief that the President is more immune than the legislature to certain kinds of corruption. See Edmond v. United States, 520 U.S. 651, 659 (1997) ("This disposition [giving appointments to the President] was...


Perhaps the strongest historical/structural argument that buttresses the already-strong textual case against substantive legislative involvement and enhanced gubernatorial independence derives from the concerns Seventeenth-Amendment framers had about the way state legislatures did not represent the people of a state, and particular constituencies within the state, because of malapportionment.

Although largely unnoticed in most modern discussions of direct Senate election, recognition of the "antiquated systems of representation" used to draw state legislative districts, and the resulting unfairness to and misrepresentation of the state peoples was clear if not always trumpeted. 2 Such malapportioned systems, rife during the period leading up to the Seventeenth Amendment, "caused the legislatures' election of Senators to give far different results from those which would have been yielded by popular elections., Haynes describes one instance in which Democrats held the governorship for thirteen years during the period between 1865 and 1905, and thus presumably had a working majority of the state's electorate during those years; and in four presidential elections Democratic candidates won the state, "but in all that period they elected but one Senator, and he was sent to Washington for but three years to fill a vacancy., As one legislative Report advocating the elimination of state

legislative elections for Senators in 1892 put the point:

Under the present mode of election of Senators, the legislatures may be induced to make an unfair apportionment, and lay off unequal and unfair districts in order that the party temporarily in control in the legislature may reap the reward of the election designed to assure a higher quality of appointments: The Framers anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism than would a collective body."). See also, THE FEDERALIST NO. 76, at 369 (Alexander Hamilton) (Terence Ball ed., 2003) ("The sole and undivided responsibility of one man will naturally beget a livelier sense of duty, and a more exact regard to reputation."); 3


(Fred B. Rothman & Co., 1991) (1833).

72. HAYNES, supranote 57, at 92.

73. Id.

74. Id. See also Brooks, supra note 55, at 200 ("Proponents of direct election also argued that federal politics provided too strong a motive for state gerrymandering.");

Little, supra note 55, at 640 (decrying the "inadequate representation" that resulted from indirect election).

Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 747 of one of its partisans to the Senate and defeat the popular choice of the majority party in the State. 5 Even those Congresspersons who filed a Minority Report on the

question agreed about the problem of political gerrymandering:

[It would be good to] do away with the legislative gerrymandering of the States to secure the election of United States Senators by the party happening to be in power when each new apportionment is made. That this has long been the common practice, no fair-minded, intelligent man will deny.

That it will continue, until the temptation to it is removed, or our fundamental law otherwise changed, is to be reasonably expected. The law of retaliation, to some extent, will always be applied.76 Because they are elected statewide, governors are not plagued by these problems, either a hundred years ago, or today. Governors were, and are, better surrogates for the people in this regard than are state legislatures. The Seventeenth Amendment generally requires Senators to be picked the exact same way that governors are pickedthrough statewide elections with simple majority or plurality rule.

Of course, certain kinds of gerrymandering are no longer possible in light of the one-person, one-vote cases.77 But concerns about partisan gerrymandering are not eliminated by the one-person, one-vote principle. The recent Vieth v. Jubelirer case from Pennsylvania, and the recent experience in Texas, also illustrate that.

C. The Gerrymandering Concern Was Especially Powerful Relative to the Issues of Rural/Urban and Black/White Relations Partisan gerrymandering at the state level wasn't the only kind of "misrepresentation" observers of the Seventeenth Amendment attributed to the legislative selection of Senators. There was an unmistakable recognition by all participants in the Seventeenth Amendment debates that legislative election affected the interests of urban Americans and Blacks. Detractors of the Seventeenth

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Amendment expressed worry that eliminating state legislative involvement would shift power to urban centers.

A speech by Albert Doub made at a 1909 Maryland Bar Association meeting and incorporated into a Senate Document two years later, albeit made by someone whose arguments lost in the ultimate enactment of the Seventeenth Amendment, highlights the common knowledge about geographical gerrymandering that is part

of the backdrop of the debate over the Amendment:

It has been the settled policy of all the States to create divisions or districts, and to elect representatives of both houses of the legislature from these divisions, and not by voting en masse....

Mass voting for the members of the State legislatures would be subversive of the principles that have prevailed for more than a century, and soon would destroy self-government and menace the liberty of the Republic, and yet that is the very suggestion of the men who want to improve in this way upon the wisdom of their ancestors, whose genius designed the fabric of the Constitution... To give the power of choosing Senators to the centers of population of the State, the great cities, which are constantly becoming both relatively and absolutely more populous, whose interests so often clash with those of other Sections of the States, and thereby ignore the rights of the minority, is a new and radical departure from the Constitution, which may soon undermine its very existence. 8° Another skeptic of direct election, Senator George Hoar, also played on geographic and class fears in defending continuing

legislative involvement:

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In some ways, these opponents of the Seventeenth Amendment preview many of the arguments made by critics of one-person, onevote cases fifty years later. In effect, the supporters of the Seventeenth Amendment rejected their arguments a half-century before the Warren Court did. But all of that only underscores the danger inherent in involvement in Senate selection by malapportioned state legislatures that Seventeenth Amendment backers perceived.

Nor were the ever-present issues of race, which were and are intimately connected with issues of class and geography as would be made clear over the course of the coming decades, lurking far beneath the surface. Of particular note is an attempt to derail the Seventeenth Amendment made by Southerners by adding to it a provision that would repeal Congress' power under Article I, Section 4 to override and displace state legislative choices about the "times, places and manner" of federal legislative elections. The debate over this proposed amendment was "frankly partisan and Sectional.""n Lame-duck New York Senator Chauncey Depew spoke against the proposed addition on the floor of the Senate in 1911, arguing that honesty compels the recognition that Blacks were not treated justly under the current system and that federal oversight power was necessary to preserve any possibility of equality for African American voters.83 Although other Senators accused him of maligning the South and using race and blacks as a "political football,"' Northern Senators successfully fended off the proposal by invoking the voting interests of Blacks.

This effort by Southerners to derail the Seventeenth Amendment by linking direct election to the elimination of federal control over elections of federal legislators, and the successful move by Northern Senators to rebuff this effort, highlights the extent to which concerns of race, class, and rural-urban schisms were on the minds of Seventeenth Amendment players. Since everyone in the debate seemed to appreciate that gerrymandered legislatures represented urban persons and persons of color less fairly than did governors

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elected in at-large statewide contests, these concerns cut in favor of readings of the Amendment that promote gubernatorial power and minimize legislative power.

Another way of putting the argument is to say that the same Seventeenth Amendment framers who didn't trust state legislatures to fairly administer federal elections enough to relinquish Article I, Section 4 oversight powers would not, it seems, trust them to pick interim Senators (or even short lists) pending a special election.85 In this regard, it is worth remembering that a temporary appointee can run as a quasi-incumbent in the special election, which might not be held in many states for a year or more after the temporary appointment is made.

Whether our concern about partisan unfairness, geography, and race in the gerrymandering context is grounded in historical or originalist arguments about what the framers of the Seventeenth Amendment had on their minds," or on structural arguments about adopting a reading of the Constitution that promotes democratic and egalitarian values," a reading of Section 2 that limits legislative power and promotes gubernatorial power seems sound. After all, as Haynes' invocation of Connecticut's late nineteenth century experience is meant to suggest, statewide elections for executive offices are much less susceptible to gerrymandering manipulation and to certain rounding errors inherent in districting (on account of things like the discrepancy between voter registration and voter turnout, among others), and for that reason governors are better surrogates than state legislatures to pick temporary replacements for the Senate until a special popular election.

85. Indeed, if Congress were wary of state legislatures, giving up Article I, Section 4 power seems less alarming than allowing state legislatures to devise short lists, since the former deals only with time, place and manner rules-not substantive personnel selections.

86. Cf Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964) (concerning House elections and the originalist meaning of the "people" in Article I).

87. See, e.g., Michael W. McConnell, Two-and-a-Half Cheers for Bush v. Gore, in THE VOTE: BUSH, GORE & THE SUPREME COURT 103 (Cass R. Sunstein & Richard A.

Epstein eds., The University of Chicago Press 2001).

Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 751 D. The Interest in Promptly Filling Senate Vacancies (Which Is Even More Pressing Today) Argues Against Allowing a Legislature to Constrain the Governor's Choices The framers of the Seventeenth Amendment wanted to reduce stalemates and other glitches that resulted in long-term Senate vacancies. Indeed, persistent vacancies that injured both the underrepresented states and the Senate's ability to easily transact business were among the most persistent complaints concerning the broken state legislative selection process replaced by the Seventeenth Amendment. Thus, facilitating prompt Senate replacements was one of the principal objectives of reform. Haynes summarized the


[T]hat the placing of the election of senators in the hands of the legislatures does not serve to thwart the intent of the framers of the Constitution [to keep the Senate filled], and to multiply vacancies with their attendant perils, can hardly be denied.

During the past fifteen years [from 1890-1906], in fourteen contests in ten different States, the body charged with the duty of electing senators proved powerless to perform its office; four States have undergone the cost and inconvenience of a special session of the legislature for the sole purpose of filling vacancies thus caused; six States accepted vacancies, and thus, by this antique election process, were effectually deprived of their equal suffrage in the Senate. 88 It is true, of course, that state legislatures ordinarily would not want their states to be underrepresented in the Senate for long, which is why after the Seventeenth Amendment, almost every state has empowered its governor, on some terms or another, to make temporary appointments even before replacement elections can be promptly held.8 9


SENATORS 159 (Ralph C. Ringwalt, ed., 1906); see also Ralph A. Rossum, California and the Seventeenth Amendment, 6 NEXUS 101, 110-11 (2001) (providing a detailed history of legislative deadlocks in senator selection); cf. Todd J. Zywicki, Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals,45 CLEV. ST. L. REV. 165, 199-200 (1997) (arguing that while forty-six deadlocks occurred in twenty states between 1891-1905, the volume of complaints and problems associated with deadlocks was largely exaggerated).

89. Oklahoma, Massachusetts, Oregon and Wisconsin currently have no statutes empowering their governors to make temporary Senate appointments, and their statutes instead suggest that an election is the only way to fill a Senate vacancy. OKLA. STAT. tit.

26, § 12-101 (2007); MASS. GEN. LAWS, ch. 54, § 140 (2007); OR. REV. STAT., § 188.120


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