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Home Archive Volume 61 Volume 61, Issue 2 COMMENT: No Vacancy: Why Congress Can Regulate Senate Vacancy-Filling Elections Without Amending (or Offending) the Constitution
COMMENT: No Vacancy: Why Congress Can Regulate Senate Vacancy-Filling Elections Without Amending (or Offending) the Constitution

By Zachary M. Ista | 61 Am. U. L. Rev. 327 (2011)

There currently exists no uniform method for filling vacancies in the United States Senate, leaving the states to create and implement their own vacancy-filling procedures. As a result of recent problems under this system, such as ex-Governor Rod Blagojevich’s notorious scandal in Illinois, some in Congress have suggested a standardized method for filling Senate vacancies. However, an apparent constitutional conflict between the Elections Clause and the Seventeenth Amendment’s vacancy-filling clause presents the question of whether such standardization could be accomplished with federal legislation, or whether it would require amending the Constitution.  Applying the textual, structural, and historical approaches of constitutional interpretation to this conflict shows that the Seventeenth Amendment did not alter Congress’s Elections Clause authority to fashion regulations for all types of Senate elections, including those to fill vacancies. Since the Amendment’s primary goal was to eliminate state legislatures’ selection of senators, it would be an absurd textual result to interpret the Amendment as giving states any exclusive authority over vacancy-filling elections. Such an interpretation would also create structural inconsistency among the Constitution’s elections provisions and contravene the intent of the Seventeenth Amendment’s framers. Thus, if Congress wants to create a uniform method for filling U.S. Senate vacancies, it can—and should—do so through regular federal legislation, which, even after the Seventeenth Amendment’s ratification, remains a constitutionally-permissible exercise of Congress’s Elections Clause authority.

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