John Heaton (jheaton) wrote,
John Heaton

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More Congressional nerditry

I was just reading an interesting post by Nate Silver at about appointed Senators and how more often than not they fail in their attempt to be elected to the same seat. I don't find his analysis particularly convincing. First of all, once you factor out appointed Senators who chose not to run to hold the seat and factor in those he forgot to include in his initial calculations, the likelihood that an appointed Senator will hold the seat rises by a full ten points. (To be fair, though, the retention rate for Senators who run for re-election to a seat to which they were elected is thirty-some points higher than that, so Silver does have a point, just not as strong a one.)

(Incidentally, one of the appointed Senators he overlooked was my old boss Don Riegle of Michigan. That was sort of an unusual case, in that Riegle had already been elected to the seat to which he was appointed. It had previously been held by Sen. Phillip Hart, who had chosen not to run for re-election; Riegle, then a U.S. Representative, ran for the seat and won, and was set to be sworn in at the star of the next Congress, on January 3, 1977. But Hart died on December 26, 1976, so Governor Millikin appointed Riegle to serve out the few days remaining in Hart's term. Riegle was re-elected twice before retiring in 1994.)

Anyway, one thing that caught my attention while reading the post was that the State of Arkansas does not allow persons appointed to a U.S. Senate seat to run for election to that seat. From the Constitution of the State of Arkansas, Amendment 29, sections 1 and 2:

Vacancies in the office of United States Senator, and in all elective state, district, circuit, county, and township offices except those of Lieutenant Governor, Member of the General Assembly and Representative in the Congress of the United States, shall be filled by appointment by the Governor. ... No person appointed under Section 1 shall be eligible for appointment or election to succeed himself.

Now, I'm no expert, but isn't that unconstitutional? The U.S. Constitution sets forth three qualifications for the Senate:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

In U.S. Term Limits, Inc. v. Thornton, the U.S. Supreme Court ruled that states cannot impose qualifications for prospective members of the U.S. Congress stricter than those specified in the Constitution. It seems to me that the Arkansas law violates that principle and would therefore be struck down if ever challenged. As it happens, the one person who would have had standing to sue to have the law overturned -- Sen. Kaneaster Hodges, Jr., appointed to serve out the term of Sen. John Little McClellan -- chose not to contest the law, so we may never find out if my theory is correct, but I'm reasonably certain it is.


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