Who should choose a successor if a California senator resigns: Newsom or voters?

Should California hold a special election to fill a U.S. Senate vacancy, instead of having Gov. Gavin Newsom appoint someone to fill the seat?

Some states leave the choice of a successor to voters and a California congressman is pushing to have all states proceed that way.

One downside of special elections is that they are expensive. The unsuccessful effort to recall Newsom in 2021 cost California an estimated $276 million.

And because turnout would likely be low — meaning that highly motivated activists would be more likely to vote — the chances of a political novice or a Republican winning in California would increase.

“I don’t think a Republican could win a Senate race in California, but a special election might crack open the door ever so slightly in the way a regularly-scheduled election might not,” said Kyle Kondik, managing editor of Sabato’s Crystal Ball, a nonpartisan political site.

Sen. Scott Brown, a Republican, won a 2010 special election in Massachusetts to succeed the late Sen. Ted Kennedy, the Democrat who held the seat for 47 years.

Brown lost the general election three years later to Democrat Elizabeth Warren. He’s the only Republican to serve in the Senate from Massachusetts since 1979. California last elected a Republican senator in 1988.

Should voters decide?

In a closely divided Senate like the current one — split 50-50 last year and Democrats now with 51 of the 100 seats — a gubernatorial appointment could be a game changer.

“The evenly split Senate means that even a single governor could, hypothetically, determine which party controls the chamber,” said a report from the nonpartisan Pew Research Center last year.

Rep. Kevin Kiley, R-Rocklin, argues “Gubernatorial appointments are a vestige of a bygone era that has disenfranchised millions of Americans and been subject to repeated abuse.”

Kiley has proposed an amendment to the U.S. Constitution requiring special elections in case of a vacancy. The Constitution’s 17th amendment, which provides for direct election of U.S. senators (prior to that state legislatures chose) also allows a temporary appointment if there’s a vacancy. How that seat is filled is up to the states.

In 37 states, including California, governors make interim appointments to the Senate, and the new incumbent serves until the next general election, according to the National Conference of State Legislatures.

The other 13 have special elections to fill the seat as soon as possible. In some cases the governor can name someone to serve in the interim.

States have tried to move in both directions in recent years. Utah and North Dakota have made it easier to hold special elections.

Others have tinkered with the appointment process. Maryland and Kentucky now require an appointee to be of the same political party as the departing senator, joining five other states.

When Vice President Kamala Harris, a Democrat, took office in January 2021, Newsom appointed Alex Padilla, then the California secretary of state.

Padilla then was on the ballot twice last year, once to fill Harris’ unexpired term and then for a six-year term of his own. He easily won both elections. Other states usually hold a special election as soon as possible.

Appointed senators

The Senate currently has one appointed member who has not stood for election, Sen. Pete Ricketts, R-Nebraska. He was named in January when incumbent Sen. Ben Sasse resigned to become president of University of Florida.

Ricketts, a former Nebraska governor, would have to run in 2024 to fill the last two years of Sasse’s term. He was appointed by his successor, Jim Pillen.

Eleven other current U.S. senators were first appointed to the job and then won elections. Two appointed senators, Martha McSally, R-Ariz., and Kelly Loeffler, R-Ga., lost in 2020.

Newsom has said that if a vacancy occurs, he will name a Black woman to the seat. Rep. Barbara Lee, D-Oakland, is currently seeking to succeed Feinstein when the senator’s term ends in 2025. Among those also vying are Democratic Reps. Adam Schiff of Los Angeles and Katie Porter of Orange County.

Kiley’s idea has been proposed before. In 2009, the Senate’s Constitution subcommittee backed the plan after a hearing, but it went nowhere.

Even if Kiley’s plan gained momentum, it’s highly doubtful it could take effect before 2024, when California voters will choose a senator to serve a six-year term.

Amending the Constitution takes time. The last amendment, ratified in 1992, said any pay raises Congress voted itself were only effective after the next election. It was the first to be added since 1971 when the voting age was lowered from 21 to 18. Usually, Congress must approve an amendment by a two-thirds majority, and the measure would need the approval of the legislatures of 38 states.

Congress can also call a constitutional convention if two-thirds of the states approve.

Feinstein’s support

Feinstein is expected to return to the Senate soon, though no timetable has been set.

Though four House Democrats and dozens of California liberal groups have urged her to resign, no senator has done so.

Almost all have expressed hope that she will return soon, as she said she plans to do.

Sen. Ted Cruz, R-Texas, a Senate Judiciary Committee member who rarely agrees with Feinstein on policy, spoke warmly of her and was not eager to see her replaced.

He criticized what he said were calls for her resignation from “the radical left trying to throw Dianne Feinstein out of the Senate is driven because they want to ram through the most extreme, radical nominees who can’t even get a single Republican vote.”