Gubernatorial Appointment Powers for U.S. Senate Seats: Which Vacancies Could Prompt a Party Switch?

Facebooktwittergoogle_plusredditpinterestmail

KEY POINTS FROM THIS ARTICLE

— In a presidential election year, the senatorial appointment powers of governors become especially important, as sitting U.S. senators become possible choices for vice president or the Cabinet of an incoming president.

— Currently, in 38 states, there is no chance that the gubernatorial appointment of a temporary senator will come from the opposite party. In the remaining 12 states, a party-shifting senatorial appointment is theoretically possible.

— Presumptive Democratic nominee Joe Biden shouldn’t have much to worry about as he makes his choices. Most of the senators who could become Biden’s running mate represent states where their seat would not be at immediate risk of a party shift. The one exception is Sen. Elizabeth Warren (D-MA).

— A special election necessitated by a senator leaving her seat to become vice president could also lead to Democrats losing a Senate seat. This could give Biden pause as he considers some choices, perhaps most notably Sen. Tammy Baldwin (D-WI).

The Senate control implications of Biden’s VP possibilities

Note: This story has been corrected to include Montana as a state where a new Senate appointee must share the same party as the departed senator, and it corrects the partisan lineup in Alabama.

In a presidential election year, the senatorial appointment powers of governors become especially important, as sitting U.S. senators become possible choices for vice president or the Cabinet of an incoming president.

Unlike vacancies in the U.S. House — which are exclusively filled by special elections — many vacancies in the Senate can be filled temporarily by a gubernatorial appointment. That governor may belong to a different party than the senator leaving the seat. This means that a sudden Senate vacancy could produce a shift in the partisan lineup of the Senate. By the same token, the fear of that scenario playing out could affect a presidential nominee’s choices of a vice president and Cabinet members.

Let’s first look at the role governors play in filling these vacancies, and then game out some scenarios to assess how vulnerable a currently Democratic seat might be in a special election if presumptive Democratic nominee Joe Biden selected its current occupant as his running mate (and then Biden won the presidency, forcing the Senate vacancy).

There are three broad categories of what states do in the event of a Senate vacancy:

— States where the governor cannot appoint a senator; instead, a special election must be held. There are five states in this category: North Dakota, Oklahoma, Oregon, Rhode Island, and Wisconsin.

— States where the governor can appoint a new senator on a temporary basis, but is restricted by law to choosing a senator of the same party as the previous senator. There are seven states in this category: Arizona, Hawaii, Maryland, Montana, North Carolina, Utah, and Wyoming.

— The governor can appoint a new senator on a temporary basis and doesn’t have any restrictions on what party that senator needs to belong to. There are 38 states in this category — every state except for those listed above.

It is only in this final category that a governor could in theory make an appointment that directly shifts the partisan balance of the Senate. But as a practical matter, not every governor in these 38 states could pursue such a path, because many of those states have a governor and both senators in the same party.

Currently, among states where the governor has appointment power, there are 14 with a Republican governor and two Republican senators, while there are 12 with a Democratic governor and two Democratic senators. That leaves just 12 states in which a party-shifting appointment could theoretically be made. (For the purposes of this analysis, we are considering independent senators Bernie Sanders of Vermont and Angus King of Maine to be Democrats because they caucus with Senate Democrats despite their official affiliation.)

In three states, there is a Republican governor and one Democratic senator. In Alabama, the governor is Republican Kay Ivey and one senator in Democrat Doug Jones. In Ohio, the governor is Republican Mike DeWine and one of the senators is Democrat Sherrod Brown. In West Virginia, the governor is Republican Jim Justice and one of the senators is Democrat Joe Manchin.

In three states, there is a Democratic governor and one Republican senator. In Colorado, the governor is Democrat Jared Polis and one of the senators is Republican Cory Gardner. In Maine, the governor is Democrat Janet Mills and one of the senators is Republican Susan Collins. And in Pennsylvania, the governor is Democrat Tom Wolf and one of the senators is Republican Pat Toomey.

Meanwhile, there are six states that have a governor of a different party than both of the state’s senators.

Three of these states have Republican governors and two Democratic senators. In Massachusetts, the governor is Republican Charlie Baker while the two senators are Democrats Elizabeth Warren and Ed Markey. In New Hampshire, the governor is Republican Chris Sununu and the senators are Democrats Jeanne Shaheen and Maggie Hassan. And in Vermont, the governor is Republican Phil Scott while the two senators are Sanders and Democrat Patrick Leahy.

Another three states have Democratic governors and two senators of the opposite party. In Kansas, the governor is Democrat Laura Kelly while the senators are Republicans Pat Roberts and Jerry Moran. In Kentucky, the governor is Democrat Andy Beshear while the senators are Republicans Mitch McConnell and Rand Paul. And in Louisiana, the governor is Democrat John Bel Edwards while the senators are Republicans John Kennedy and Bill Cassidy.

Overall, the breakdown of appointment powers presents presumptive Democratic presidential nominee Joe Biden with a relatively free hand in choosing a vice president, assuming he sticks to his promise to appoint a woman as his running mate.

For Biden, naming any of at least five Senate Democratic women would not risk an immediate shift in partisan control of their seat. The seats currently held by Catherine Cortez Masto of Nevada, Tammy Duckworth of Illinois, Kamala Harris of California, and Amy Klobuchar of Minnesota would all be filled through an appointment by a Democratic governor. And the seat held by Wisconsin’s Tammy Baldwin would be filled by a special election without a temporary appointment.

There’s only one Democratic woman in the Senate who has been discussed as a possible VP choice but whose seat could be in immediate jeopardy from an appointment: Warren, because the Massachusetts governor, Baker, is a Republican.

If Biden hadn’t committed to naming a woman as his running mate, the calculus might have been different. The fact that Ohio’s governor is a Republican would have made it hard for Biden to choose Brown as his VP. It would also be hard for Biden to appoint Brown to a Cabinet post if the Democratic ticket wins in November. The same would be true if Biden had any interest in appointing, say, Shaheen or Hassan to a Cabinet post.

strong>However, that a VP or Cabinet prospect hails from an unfavorable state may not entirely preclude their chances. If Hillary Clinton had tapped Sherrod Brown in 2016 to be her running mate, there would have certainly been complaints from Democrats about the loss of his Senate seat. But, given his Frost Belt appeal, would that be justified if he had been able to deliver Michigan, Pennsylvania, and Wisconsin?

At the state level, governors have repeatedly been willing roll the dice by choosing legislators from marginal districts to serve in their administrations — in some instances, that’s hampered their legislative priorities as those districts went on to flip in special elections. On a national scale, it will be up to the Biden campaign — or potentially his administration — to weigh those risks.

The states have different rules for when a vacancy triggers a special election as opposed to having the seat filled at the next regularly scheduled statewide election. Readers can pore over the specific election-timing rules at the website of the National Conference of State Legislatures.

Let’s consider the outlook for the next elections to fill the vacancy of that could be created by some rumored VP picks. Even in states where the governor has the power to make temporary Senate appointments, elevating a tested incumbent to the VP slot could put Democrats at some risk of losing the seat in the next election. Here’s a rundown of what would happen if a vacancy emerges for one of the six Democratic women in the Senate considered to be in the VP mix.

California (Harris)

Democratic Gov. Gavin Newsom would make a temporary appointment, with the appointee serving until the next regularly scheduled statewide general election. Assuming Harris didn’t step down until after the November 2020 election, the election would be held in 2022, which is when Harris would have been up for reelection anyway.

With virtually no Republican bench in strongly blue California, the seat should remain in Democratic hands for the foreseeable future. In fact, in the 2018 election, no Republican made the final round of the Senate election. Democrat Dianne Feinstein was reelected over another Democrat in November, under the state’s top-two primary system.

Illinois (Duckworth)

Illinois would follow the same course as California, with Democratic Gov. J.B. Pritzker making the appointment. Under the same assumption that the seat would come open only after the November 2020 election, the next election would occur in 2022, which is when Duckworth’s term was set to end.

Illinois is another state where the Democratic edge is strong enough that the party has a good shot at holding the seat without Duckworth as the incumbent.

Massachusetts (Warren)

Republican Gov. Charlie Baker would make a temporary appointment. If the appointee is a Republican, the Democrats would be able to win the seat back in a special election, although the timing of that election would depend on exactly when Warren steps down. If a vacancy were to occur before the 70th day prior to the regular state primary, which this year is Sept. 1, the contest would be held on the primary ballot. If a vacancy were to occur after that time, it would be held in November.

Massachusetts is another strongly Democratic state, although one that also has a tradition of moderate Republicans. Warren’s current term runs through 2024.

Minnesota (Klobuchar)

Democratic Gov. Tim Walz would make a temporary appointment, and then a special election would depend on the timing of Klobuchar’s departure. If the vacancy occurs at least 11 weeks before the state’s regular primary, which is Aug. 11 this year, then the election would be held in November 2020. If it occurs less than 11 weeks before the primary, the election would be held in November 2022. Klobuchar’s current term runs through 2024.

While Minnesota has leaned Democratic in recent elections, and while a Republican hasn’t won a Minnesota Senate race since 2002, it’s a more competitive state than others on this list, giving Republicans at least a slightly better shot at an open seat than with Klobuchar continuing in office.

Nevada (Cortez Masto)

Democratic Gov. Steve Sisolak would make a temporary appointment, with the appointee serving until the next statewide general election. Again, assuming Cortez Masto steps down after the November 2020 election, the next election would be in 2022, which is when her term was set to end.

Nevada is looking more like a consistently blue state these days, but the Republicans have won a Nevada Senate race as recently as 2012, so a GOP victory is not out of the question.

Wisconsin (Baldwin)

There is no temporary appointment power for Wisconsin governors. If the vacancy occurs between the second Tuesday in May and the second Tuesday in July in an even year such as 2020, the vacancy would be filled in the regular primary and general election that year. (The Wisconsin primary this year is on Aug. 11.) Otherwise, the special election would be held sometime in 2021.

Of these six potential VP picks, Baldwin would see her seat most at risk for the Democrats in the next election. Wisconsin is an evenly divided state, and Baldwin is the only Democrat to win a Senate race in Wisconsin since 2010. If the Republicans did manage to flip a seat vacated by Baldwin, the winner would serve through the end of Baldwin’s term in 2024.

***

All in all, Biden doesn’t have to worry too much about his vice presidential or Cabinet picks resulting in his party losing ground in the Senate, although there are at least a couple that present some short-term or long-term risk. A potentially bigger impact could come if a Senator dies or resigns during their term. Eighteen seats — nearly one of every five seats in the chamber — could produce a shift in partisan control if a vacancy occurs.

***

Here’s our breakdown, state by state:

 

NO EXPECTED SHIFT IN PARTY ALIGNMENT (38 STATES)

GOVERNOR APPOINTS, NO RESTRICTIONS ON PARTY: REPUBLICAN GOVERNOR, 2 REPUBLICAN SENATORS (15)

Alaska

Arkansas

Florida

Georgia

Idaho

Indiana

Iowa

Mississippi

Missouri

Nebraska

South Carolina

South Dakota

Tennessee

Texas

 

GOVERNOR APPOINTS, NO RESTRICTIONS ON PARTY: DEMOCRATIC GOVERNOR, 2 DEMOCRATIC SENATORS (12 STATES)

California

Connecticut

Delaware

Illinois

Michigan

Minnesota

Nevada

New Jersey

New Mexico

New York

Virginia

Washington state

 

GOVERNOR APPOINTS, BUT WITH RESTRICTION ON PARTY OF TEMPORARY APPOINTEE (7 STATES)

Arizona

Hawaii

Maryland

Montana

North Carolina

Utah

Wyoming

 

NO GUBERNATORIAL APPOINTMENT; SPECIAL ELECTION ONLY (5 STATES)

North Dakota

Oklahoma

Oregon

Rhode Island

Wisconsin

 

POSSIBILITY OF A SHIFT IN 1 SENATE SEAT (6 STATES)

 

GOVERNOR APPOINTS, NO RESTRICTIONS ON PARTY: REPUBLICAN GOVERNOR, 1 DEMOCRATIC SENATOR (3 STATES)

Alabama – Doug Jones

Ohio – Sherrod Brown

West Virginia – Joe Manchin

 

GOVERNOR APPOINTS, NO RESTRICTIONS ON PARTY: DEMOCRATIC GOVERNOR, 1 REPUBLICAN SENATOR (3 STATES)

Colorado – Cory Gardner

Maine – Susan Collins

Pennsylvania – Pat Toomey

 

POSSIBILITY IN SHIFT OF 2 SEATS (6)

 

GOVERNOR APPOINTS, NO RESTRICTIONS ON PARTY: REPUBLICAN GOVERNOR, 2 DEMOCRATIC SENATORS (3 STATES)

Massachusetts – Elizabeth Warren and Ed Markey

New Hampshire – Jeanne Shaheen and Maggie Hassan

Vermont – Pat Leahy and Bernie Sanders

 

GOVERNOR APPOINTS, NO RESTRICTIONS ON PARTY: DEMOCRATIC GOVERNOR, 2 REPUBLICAN SENATORS (3 STATES)

Kansas – Pat Roberts and Jerry Moran

Kentucky – Mitch McConnell and Rand Paul

Louisiana – John Kennedy and Bill Cassidy