The politics of filling an empty U.S. Senate seat doesn’t mean it’s bad policy

The recent move by the Kentucky General Assembly to alter how U.S. Senate vacancies are filled was cynical. It was cynical of Republicans to move to alter Andy Beshear’s power to fill vacancies only now. Would they have supported a similar move to limit Matt Bevin’s power if Kentucky’s U.S. Senators were Jack Conway and Alison Lundergan Grimes?

But it was also cynical of Democrats to object to the proposal. Why should the presence of a Democrat in the Governor’s mansion mean that they should have the power to fill a Senate seat that the voters of Kentucky wanted Republicans to hold by a double-digit margin?

The truth is that this was a good proposal with bad motivation. It intuitively makes sense to require the Governor to fill a U.S. Senate vacancy with a member of the same party as the former Senator. No party should suffer a loss of power because one of its Senators has the misfortune of dying—and no party should suffer a gain of power because it happened to hold a governorship at the right time.

Was this a partisan move by Kentucky Republicans? Absolutely—but that doesn’t make it bad policy.

In fact, the Kentucky General Assembly should expand the idea to cover state legislative vacancies, too.

Throughout the United States, more than half of the states and territories use some form of temporary appointments to fill their legislative vacancies. In most states, the appointment is same-party— but in a handful, there’s no such requirement. The person (or people) with the power to appoint varies from state to state, with most states putting the power in the hands of the governor, county commission(s), and the state (or local) political parties.

Same-party legislative appointment systems first came about in the early 20th century—and were likely inspired by the Progressive Movement. As states ditched special elections for temporary appointments, they made arguments that may sound familiar to Kentuckians. Advocates argued that an untimely vacancy shouldn’t cost a party its power. (The same argument was made by Kentucky Republicans this year.) They argued that special elections were expensive. (A survey from the Kentucky County Clerks Association estimates that special elections cost $1,200 per precinct.) And they argued that in between the vacancy and the special election, voters are deprived of representation. (In Kentucky, special elections take about two months to schedule, which could occupy most of the legislative session.)

Under same-party appointment systems, voters are guaranteed continuity in representation at no additional cost. They don’t have to endure non-representation in the legislature while a costly, randomly scheduled special election with embarrassingly low turnout takes place.

Are these systems perfect? Definitely not—in some states, machines of political parties control the process and allow party bosses to dictate who the replacement is, and in others, the appointed replacements don’t have to face the voters until their term is up, preventing democratic accountability.

But in designing its own system of filling state legislative vacancies, Kentucky has the advantage of picking and choosing from the best practices from states and territories around the country — and avoiding the flawed ones. The state legislature should put a constitutional amendment on the ballot abolishing special elections—and allowing voters to ensure that the choices they make are respected when the unthinkable happens and vacancies occur.

Tyler Yeargain is the Associate Director of the Yale Center for Environmental Law and Policy, and the author of the article “The Legal History of State Legislative Vacancies and Temporary Appointments.”