There was once a time when filling a vacancy in the U.S. Senate was pretty clear cut. When a vacancy occurred either as a result of a death or resignation, the Governor of that state appointed a successor to fill the seat for the remainder of the term or until the next federal general election. In recent years, some states have tinkered with these laws, creating untold complications for the Governors who must fill such vacancies. Such is the case in New Jersey where Democratic Sen. Frank Lautenberg passed away this morning at the age of 89 from viral pneumonia.
Lautenberg had already announced his decision not to run in 2014. He has been absent from the Senate much of the last few months due to illness. But, if timing is everything in life, it might be even truer in the death of a U.S. Senator.
Under state law, the timing of Lautenberg’s death complicates when an election might be held to succeed him. The only thing that is clear is that when a U.S. Senate vacancy occurs, New Jersey’s Governor does appoint someone to fill the seat until a successor can be elected. What state law makes complicated is the timing of the election to choose that successor.
There are conflicting provisions in New Jersey state law about when an election to fill a vacancy will occur. According to one provision, the law says that if a vacancy occurs more than 70 days before the next regularly scheduled statewide general election, then it will be filled during that general election. Since 2013 is a regular election year in New Jersey, the law would mean that a vacancy occurring before August 27, 2013 would require a special election to be held on November 5 of this year. As a result, Republican Gov. Chris Christie would appoint a successor who would theoretically have to run five months from now.
However, another provision in state law says that a special election will be held in the next regularly scheduled statewide general election (e.g., this November) only if the vacancy occurs more than 70 days before the state’s primary election. New Jersey’s primary election is tomorrow (June 4, 2013). If a vacancy occurs less than 70 days before the primary, then the vacancy would be filled at the next general election – or November 4, 2014. It should be noted that the Governor does have the discretion to call a special election anytime between now and November 4, 2014, including holding one on November 5 of this year.
It is not rocket science to figure out what each party wants in this situation. Democrats would prefer holding an election this November. New Jersey tilts heavily toward Democrats and the sooner the election, the better the chances that a Democrat will win, especially if that candidate is Newark Mayor Cory Booker. Five months won’t give any Republican appointee enough time to run a credible, well-funded campaign. Democrats may decide that this is worth fighting for and could well take their chances in court if Christie decides that the election will be held in November of 2014.
Republicans, on the other hand, likely want a special election in November of next year. They would want Christie to appoint someone to the Senate who would run in 2014. Their hope is that nearly 18 months would give a GOP-appointed incumbent enough time to build name recognition, amass the necessary eight-figure war chest, and compile a voting record that would appeal to many New Jersey voters. This would be Republicans’ best shot at holding the seat. Even so, the race would remain something of an uphill battle for them.
While there is undoubtedly no shortage of lawyers in Trenton and Washington working to figure this out, Christie has a lot of latitude here. As he is on the ballot this November and has not denied his interest in running for the GOP presidential nomination in 2016, Christie’s decision will, by necessity, have its share of political calculation.
For now, there is little to do but wait for the legal situation to sort itself out.
Charlie Cook's Column
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