Why Chris Christie Is Right to Call for a Special Election

To understand why simply naming a replacement would be outdated and inappropriate, you have to know a bit about Constitutional history.


Lucas Jackson/Reuters

UPDATE: 5:25 P.M.: Not long after the piece below was posted, New Jersey Gov. Chris Christie announced that the Senate seat left vacant by the death of Sen. Frank Lautenberg would be filled by a special election on October 16, a little less than three weeks before the regularly scheduled state election in which he will be seeking re-election. Christie's political enemies are making much of the fact that this schedule means that Democratic voters, motivated to keep the Senate seat in their party's hands, will be drawn to the polls by the earlier vote, making Christie's task of seeking re-election easier. My knowledge of New Jersey politics (I say without regret) is insufficient to allow me to evaluate that claim. But what I will say is that, for the reasons set forth in the piece below, a decision to hold a special election as soon as possible is the one most faithful to the spirit and letter of the Seventeenth Amendment. Though the election in the fall is not an election next week, and Christie will be appointing an interim senator, this months-long interim appointment is much more in keeping with our current understanding of Constitutional requirements than an appointment lasting for the duration of the late Senator Lautenberg's term, without a special election at all. It may be that Christie is that rarest of American phenomena, a politician who finds that honoring the Constitution is also in his own best interests. If so, my hat is off to him.

A Senate seat, as the immortal Rod Blagojevich once remarked on tape, is a "f***ing valuable thing, you don't just give it away for nothing."

The latest lucky governor to "have" a seat to "give away" is New Jersey's Chris Christie, who must now appoint a successor to his arch-enemy, Senator Frank Lautenberg. The media are abuzz with speculation about how Christie will manipulate his gift to his own best advantage. The story is made more complicated by the fact that the New Jersey Legislature, in its wisdom, passed a statute in 2011 that directly contradicts itself. If Christie follows one provision of the statute, the temporary senator he appoints will serve until the end of this year; if he follows another, the "temporary" term will extend until January 2015 -- the end of Lautenberg's term.

The politics of this are considered all important, of course. If the new senator serves the shorter term, the election for his successor will take place at the same time as Christie's own attempt at re-election, thus possibly drawing undesirable voters to the polls.

But this drama involves more than Christie's own towering ambition. The New Jersey legal snafu stems from what seems to have been a careless error in the drafting of the Seventeenth Amendment. If we take reading the Constitution seriously, even the flawed text of that Amendment points to the correct answer to Christie's dilemma.

Here are the relevant parts of the Amendment:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The Seventeenth Amendment is one of the great achievements of small-d democratic activism in American history. Until its ratification in 1913, senators were appointed by the state legislatures, whose members often simply auctioned the office to the most generous millionaire. For twenty years, Progressives and Populists denounced the system of election-by-crony. In the end, popular wrath at what muckraking reporter David Graham Phillips christened "The Treason of the Senate" was so great that two-thirds of the Senate voted to put themselves out of business, and the states ratified in near-record time.

Much of the congressional debate about wording centered on the second sentence, which meant that anyone who could vote for House members could vote for senators. Southern senators stalled the bill and tried to extort a change in the language that would allow them to limit voting for the Senate to whites only. All but unnoticed in the fracas was the language governing how states should handle a Senate vacancy.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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