Article I, Section 3, Clause 2:

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

The Seventeenth Amendment’s ratification in 1913 provided for the Senate to be elected by popular vote rather than chosen by state legislatures, thereby harmonizing the Senate selection process with that of the House.1 Consistent with this, the Seventeenth Amendment set aside the Senate Vacancy Clause set forth at Article I, Section 3, Clause 2, which provided for state legislatures to fill Senate vacancies, mandating, instead, that a state’s Executive Authority2 fill vacant Senate seats through popular elections. Accordingly, the Seventeenth Amendment’s Senate Vacancy Clause mirrors the House Vacancy Clause by providing that “the executive authority of such State shall issue writs of election to fill vacancies . . . .” 3 The Seventeenth Amendment, however, provides state legislatures greater flexibility to address Senate vacancies by allowing state legislatures to authorize state Governors to fill Senate vacancies temporarily until the election.4

The Framers distinguished the Senate Vacancy Clause set forth at Article I, Section 3, Clause 2, from the House Vacancy Clause set forth at Article I, Section 2, Clause 4, by expressly contemplating that vacancies in the Senate might arise from resignations. By contrast, the House Vacancies Clause does not refer to resignations. Because state legislatures selected their state’s Senators prior to the 1913 ratification of the Seventeenth Amendment, the express discussion of resignations in the Senate Vacancy Clause may have tacitly recognized, as one commentator has noted, that Senators who declined to follow directions of their state legislatures were expected to resign.5

Footnotes

1

U.S. Const. amend. XVII. See U.S. Const. art. I, § 2, cl. 4.

2

The Framers’ use of the term “executive authority” reflected that early state constitutions often provided for an executive council to control or advise the state’s chief executive. Charles C. Thach, Jr., The Creation of the Presidency, 1775–1789: A Study in Constitutional History 16–17 & n.7 (Johns Hopkins U. Press 1969) (1923).

3

U.S. Const. amend. XVII.

4

Id. ( “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.” ).

5

Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177, 214 (2008).