Vacancies in Congress occur due to the death, resignation, or declination (refusal to serve) of a Senator or Representative, or as the result of expulsion or exclusion by either house. The Constitution requires that vacancies in both houses be filled by special election, but in the case of the Senate, it empowers state legislatures to provide for temporary appointments by the state governor until special elections can be scheduled. This report describes this process

Neale, Thomas H.

Richardson, Sula P.

This report discusses how vacancies in Congress are filled when a Senator or Representative dies, resigns, declines to serve, or is expelled or excluded from either house. The Constitution requires that vacancies in both houses be filled by special election, but in the case of the Senate, it empowers state legislatures to provide for temporary appointments by the state governor until special elections can be scheduled

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Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code 97-1009 GOVUpdated January 22, 2003House and Senate Vacancies: How Are They Filled?Sula P. Richardson and Thomas H. NealeAnalysts in American National GovernmentGovernment and Finance DivisionSummaryVacancies in Congress occur due to the death, resignation, or declination (refusalto serve) of a Senator or Representative, or as the result of expulsion or exclusion byeither house.  The Constitution requires that vacancies in both houses be filled by specialelection, but in the case of the Senate, it empowers state legislatures to provide fortemporary appointments by the state governor until special elections can be scheduled.In practice, most Senate vacancies are filled by such appointments in the interim,while all House vacancies are filled by special elections.  If, however, a House vacancyoccurs late in the life of a Congress, many states will leave the seat empty until generalelection day, when a special election for the balance of the term and a regular electionfor the forthcoming Congress are held simultaneously.Nominations for Senate special elections are usually by primary, while those forHouse special elections can be by primary, nominating petition, or party action, asspecified by state law. A plurality is necessary to win in most special elections, although there aresignificant variations in certain states.Procedures Governing VacanciesVacancies in Congress occur when a Senator or Representative dies, resigns, declinesto serve, or is expelled or excluded from either house.SenateProcedures governing vacancies in the Senate were initially established by ArticleI, Section 3 of the Constitution, as later amended by paragraph 2 of the 17th Amendment.The latter states:CRS-21 Or. Rev. Stat. §188.120 (2001). 2 Wis. Stat. § 17.18 (1999-2000). 3 Okla. Stat. tit. 26, §12-101.4 Alaska Stat. §15.40.010 (2001); Ariz. Rev. Stat. §16.222 (2001); and Haw. Rev. Stat. § 17-1(2001). 5 Utah Code Ann. § 20A-1-502(2) (2001) and Wyo. Stat. § 22-18-111 (i) (2002).When vacancies happen in the representation of any State in the Senate, the executiveauthority of such State shall issue writs of election to fill such vacancies:  Providedthat the legislature of any State may empower the executive thereof to maketemporary appointments until the people fill the vacancies by election as thelegislature may direct.Appointment of Interim Senators.  Prevailing practice is for state governors tofill Senate vacancies by appointment, with the appointee serving until a special electionhas been held, at which time the appointment expires immediately.  In the event a seatbecomes vacant between the time of a general election and the expiration of the term,however, the appointee usually serves the balance of the term, until the next regularlyscheduled general election.  This practice originated with the constitutional provision thatapplied prior to the popular election of senators, under which governors were directed tomake temporary appointments when state legislatures were in recess.  It was intended toensure continuity in a state’s Senate representation during the lengthy intervals betweenstate legislative sessions.The governor’s direct authority to make interim appointments is specified in thevarious state laws.  Oregon1 and Wisconsin2 do not allow the governor to make interimappointments, requiring, instead, a special election to fill any Senate vacancy.  The Stateof Oklahoma also requires that Senate vacancies be filled by special elections, with anexception.  If the vacancy occurs after March 1 of any even-numbered year and the termexpires the following year, no special election is held; rather, the governor is required toappoint the candidate elected in the regular general election to fill the unexpired term.3At least five states restrict the governor’s power to appoint interim Senators.  Alaska,Arizona, and Hawaii require the governor to fill Senate vacancies with a person affiliatedwith the same political party as the previous incumbent.4  Utah and Wyoming require thegovernor to select an interim senator from a list of three candidates proposed by the statecentral committee of the political party with which the previous incumbent was affiliated.5Many states limit the term of office for interim senators to the date set for the specialelection.  In these cases, the term of the interim senator expires immediately upon theelection of the popularly chosen successor, who serves the balance of the Senate term,whether it is a few weeks or several years.  Moreover, when an interim appointment ismade late in the term, it is often customary for the interim senator to resign his or her seatimmediately after the election, and for the governor to appoint the special election winnerto serve the balance of the term.  It is also customary, for the purposes of determiningseniority, for the newly elected replacement senator to be sworn in as soon as possible.Nominations.  Nomination procedures for Senate special elections vary widelyamong the states.  The majority require a special primary election to determine the majorCRS-36 In 1998, voters in Oregon passed a ballot initiative that requires Oregon’s biennial primary andgeneral elections to be conducted by mail.  This “vote-by-mail” system replaces traditionalpolling place elections, but voters can still hand-deliver their ballots to designated drop sites.7 S. Res. 458, 98th Cong., 2nd Sess., Oct. 4, 1984;as amended by S. Res. 173, 100th Cong., 1st Sess.,Mar. 4, 1987, “Closing The Office of a Senator or Senate Leader Who Dies or Resigns,” in U.S.Congress, Senate Committee on Rules and Administration, Senate Manual, 106th Congress,“Standing Orders of the Senate,” Sec. 72, p. 108 (Washington: GPO, 2000).party nominees, while minor party and independent candidates generally qualify by filinga requisite number of petitions for general election ballot placement.  Finally, some statesprovide for nomination by party-determined procedures, such as by the party’s statecommittee, or at a state party convention.  Louisiana and Texas, which provide the majorexceptions to these rules, are treated in the next section of this report.General Elections.  Generally, the governor has the authority to set the dates forboth primary and general special elections within either a window of time or a specificnumber of days after the vacancy occurs, according to state requirements.  In the interestsof convenience, enhanced voter interest and participation, and economy, special electionsare often scheduled to coincide with regular elections.  A plurality of votes in the primaryand general elections is sufficient to nominate or elect in most cases, although a numberof southern states require a majority to nominate, providing for a runoff election if nocandidate attains a majority.    Special election procedures in Georgia, Louisiana, and Texas constitute significantvariations from the norm.  Georgia requires a majority to elect in all congressional andstatewide special elections.  Louisiana and Texas provide for an all-parties special primaryelection. All candidates qualifying for placement on the ballot participate in the election,in which a majority is necessary to elect.  Any candidate receiving more than 50% of thevote is declared elected.  If no candidate receives a majority, the two receiving the mostvotes, regardless of party affiliation, compete in a second election, termed a generalelection in Louisiana and a runoff in Texas.  Louisiana mandates the all-parties primaryfor regular as well as special elections, while the Texas practice is unique to that state’sspecial elections.One of the more interesting developments in Senate special elections in recent yearswas Oregon’s 1996 decision to conduct both the primary and general elections to fill aSenate vacancy by mail-in ballot only, with no in-person voting at polling places. 6Staff Disposition.  In the event of a Senator’s death, his or her staff continue tobe compensated for a period not exceeding 60 days (unless the Senate Committee onRules and Administration determines that more time is needed to complete the closing ofthe office), performing duties under the direction of the Secretary of the Senate.7House of RepresentativesThe Constitution provides for cases in which House seats become vacant in ArticleI, Section 2, clause 4:CRS-4When Vacancies happen in the Representation from any State, the ExecutiveAuthority thereof shall issue Writs of Election to fill such Vacancies.The Constitution thus requires that all House vacancies be filled by special election.There is no constitutional provision for the appointment of interim Representatives.Scheduling.  The responsibility for scheduling special elections is vested in thestate legislatures (2 U.S.C. 8):The time for holding elections in any State, District, or Territory for a Representativeto fill a vacancy, whether such vacancy is caused by the death, resignation, orincapacity of a person elected, may be prescribed by the laws of the several States andTerritories respectively.House vacancies that occur in the first session of a Congress are invariably filled byspecial elections. The responsibility for ordering a special election is vested in thegovernors of the states.  Most states also either set a window of time, or prescribe an exactnumber of days after the vacancy occurs, in which nomination procedures and the specialelection must be held.  Within these constraints, state governors and election authoritiesgenerally attempt to schedule special elections for a regular election day, in the interestsof economy, convenience, and increased voter participation.Procedures governing vacancies occurring during the second session of a Congressdiffer from state to state, and are largely dependent on the amount of time interveningbetween the vacancy and the next general election.  For instance, if a House seat becomesvacant within six months of the expiration of the previous incumbent’s term, many statesallow the seat to remain vacant for a time, providing for a special election to be held onthe regularly scheduled election day, at the same time that a regular election for that seatfor the ensuing Congress is held.  Other states, under these circumstances, do not providefor a special election, and the affected seat remains vacant until the ensuing Congressconvenes the following January.Nominations.  Nomination procedures for House of Representatives specialelections vary as widely among the states as do those for the Senate.  Some states requirea special primary election to determine the major party nominees, while minor party andindependent candidates generally qualify by filing a requisite number of petitions forgeneral election ballot placement.  A plurality is sufficient to elect in most primary states,but some southern states require a majority to nominate in the primary.  If no candidateattains a majority, then a runoff, or second, primary is held at a later date, in which thetwo candidates winning the most primary votes compete for the nomination.  Othersprovide for nomination by such party-established procedures as party congressionaldistrict caucuses and conventions, or meetings of party committees or interested partymembers in jurisdictions comprising the affected congressional district.    General Elections.  Special general election procedures for the House ofRepresentatives generally mirror those for the Senate, with some variations.  Once again,in most states a plurality is sufficient to elect in the general election. Several states,however, have adopted procedures for House special elections that effectively conjoin thenomination and election process, sometimes in combination with other variations. Theseinclude California, Georgia, Louisiana, and Texas.CRS-58 California Election Code, § 10700-10707 (2001).9 Georgia Election Code, § 21-2-501 (2001). 10 Louisiana Election Code, tit. 18, § 511, §512, and §1279. The Supreme Court’s 1997 decisionin Foster v. Love (522 U.S. 67 (1997)) affected only the timing of regular general elections inLouisiana; the all-parties nature of the procedure was not in question, and remains intact for bothspecial and regularly scheduled elections. 11 Texas Election Law, § 203.001-012, 0A; and 204.021.All qualified candidates for House special elections in California compete in aspecial primary, regardless of party affiliation.  Nomination is by petition.  Any candidatereceiving more than 50% of the vote in the primary is elected, and the general election iscanceled.  If no candidate receives the required majority, the single candidate of eachparty receiving the most votes competes in a special general election, wherein a pluralityof votes is sufficient to elect.  In the event that candidates of only one party compete inthe primary, a plurality is sufficient to elect, and there is no general election.8As noted previously, Georgia requires a majority to elect in all congressional andstatewide special elections.  If no candidate receives 50% of the vote, then a runoff, orsecond, election is held between the two candidates gaining the most votes.9Louisiana procedures for House special elections are the same as those applying toits Senate elections.  All candidates who qualify for ballot access compete in the primaryelection, in which a majority of votes is necessary to elect.  A candidate receiving 50%of the vote is declared elected.  If no candidate receives a majority, the two candidatesreceiving the most votes, regardless of party affiliation, compete in a second election,termed a general election. Louisiana mandates the all-parties primary for regular as wellas special elections.10Texas provides for an all-parties special primary election to fill House vacancies.All candidates qualifying for placement on the ballot participate in the election, in whicha majority is necessary to elect.  A candidate receiving 50% of the vote is declaredelected.  If no candidate receives a majority, the two candidates receiving the most votes,regardless or party affiliation, compete in a second election, termed a runoff in Texas.Unlike in Louisiana, in Texas the all-parties primary is unique to special elections.11Winners of House special elections held concurrently with those for the ensuingCongress are often not sworn in as Members of the House of Representatives, sinceCongress has usually adjourned sine die before election day.  They are, however, accordedthe status of incumbent Representatives for the purposes of seniority, office selection, andstaffing.Staff Disposition.  Staff of a deceased or resigned Representative are compensateduntil a successor is elected to fill the vacancy, performing duties under the direction of theClerk of the House (2 U.S.C. 92 b,c).

House and Senate Vacancies: How Are They Filled?

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House and Senate Vacancies: How Are They Filled?

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