Presently, there are two diaries on the Recommended List concerning the candidacy of Tom Geoghegan, including this one. Being from New York, I have no dog in that fight, and wish him (and the splendid choices vying for this seat) well.
My concern lies with the op-ed written by Mr. Geoghegan that appears in the New York Times today.
My brother and I are both attorneys. He is older, and when I went to law school, he would kid me about certain courses I thoroughly enjoyed - seminars on legal history and public policy, for example. He called them "Law In The Lounge", which was shorthand for "they don't help you with the Bar Exam". True enough. On the other hand, I was the first person in my family to pass the Bar on the first try!
So follow me below the fold for some "Law In The Lounge".
Mr. Geoghegan essentially argues in his op-ed that we need special elections to fill Senate vacancies, and that governors should not have the authority to appoint someone to fill the position. Fair enough. I don't agree with his "strict construction" approach to the Seventeenth Amendment, and neither has the courts. However, he gives the impression that there is only case on the subject, Valenti v. Rockefeller, 292 F. Supp. 851 (W.D.N.Y. 1981), which, as he puts it, was affirmed rather summarily by the Supreme Court in 1969. In short, here is what he says in the op-ed:
The suit was taken up by a federal three-judge panel; two judges held that it was a "reasonable exercise of discretion" for a New York state law to give the governor such power. The third, the widely respected Marvin Frankel, argued that the second clause of the 17th Amendment required special elections as soon as possible. But the matter hardly rests there, as the Supreme Court eventually ducked the question. In 1969 it issued a "per curiam" summary affirmance of the panel’s decision — meaning that while it didn’t overturn the judgment, it issued no opinion in favor of it. Such an affirmance is typically not treated as a strong precedent.
Now, a layman might think "Well, geez, they didn't look at that too closely, they really ought to re-think this", that's what Mr. Geoghegan wants to impress upon you. He next says:
Virtually any change in circumstance can allow the Supreme Court to look at the issue again and change its mind. And given what’s going on in Illinois, what may have seemed a "reasonable exercise of discretion" in 1968 no longer seems reasonable today. The 17th Amendment was supposed to stop backroom deals, and the courts should let it do so.
Now, here's the thing. The opinions by the three district court judges who wrote in 1968 were long and scholarly. Unfortunately, the opinion is so old that you cannot get it on the Web for free! So I can only quote parts of it, and if you want the whole thing, email me (the addy is in my profile) I'll send you the longest email you may ever receive.
Bobby Kennedy was murdered in June, 1968. There was, as a result, a vacancy in the New York Senate seat that he held. Three suits were filed in New York State to force a special election that year. Three District Court Judges were designated to hear the cases; they formed a panel and heard all of the arguments.
The majority opinion states the case before it:
These three suits brought by New York voters[fn1] against
the Governor and the Secretary of State sought a determination
that the Seventeenth Amendment to the United States
Constitution requires that the Senate vacancy created by the
death of Senator Robert F. Kennedy on June 6, 1968, be filled
at the November, 1968 general election. Since this vacancy
arose less than 60 days prior to New York's regular spring
primary in an even-numbered year, under New York Election Law
§ 296 the vacancy will be filled at the general election in the
next even-numbered year, in this instance November, 1970. The
Governor is empowered to make a temporary appointment, with the
appointee serving until December 1, 1970.[fn2]
You see their problem. Not a lot of time to have a special election.
Onto the Seventeenth Amendment, which states:
The senate of the United States shall be composed of two senators
from each state, elected by the people thereof, for six years; and each
senator shall have one vote. 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.
This amendment shall not be so construed as to affect the election
or term of any senator chosen before it becomes valid as part of the
constitution.
The issue arose, of course, because of the second paragraph. Now Mr. Geoghegan wants it to be read very strictly. I don't think that's very reasonable or necessary, nor did the majority in Valenti. They said:
Plaintiffs read this provision as permitting a "temporary"
appointee to serve only until the vacancy can be filled by the
people at the next "regularly scheduled election if there is
sufficient time between the happening of the vacancy and the
scheduled election."[fn3] In the circumstances of this case
they argue that the election must be held in November, 1968,
even though the candidates for the vacancy could not have been
selected this year through the state's normal procedure[fn4]
of nominations by the party committee in March or April
followed by a popular primary in June preceding the election.
We hold that the provisions of New York Election Law § 296 do not exceed the discretion conferred on the states by the
Seventeenth Amendment with respect to the timing of vacancy
elections and the procedures to be used in selecting
candidates for such elections. Substantial state interests are
furthered by the decisions of the New York Legislature that
Senate vacancy elections be held only in conjunction with
regular congressional elections, and that candidates for
vacancy elections be selected through the state's modified
direct primary system.
Our decision is strongly influenced by the fact that from
the ratification of the Seventeenth Amendment in 1913 down to
the present day most state legislatures have interpreted its
provisions as authorizing the enactment of vacancy election
statutes very similar to the New York law attached here.
Accordingly we find that an election in November, 1970 to fill
this Senate vacancy will be in compliance with the Amendment.
The opinion discusses the substantial state interests it identifies in upholding the law - the costs to the state of the election, the prohibitive cost of statewide campaigns for a Senate seat, the difficulty encountered by the state in putting a federal election in what is normally an "off-year", and the inattention of voters during an off-year. It surveyed all of the states.
In short, whether you disagree with the majority or not, these three judges really thought about all of it, and the majority rendered an opinion I agree with, and so did the Supreme Court.
Here in New York, we are facing a $15 billion dollar deficit. Our local Boards of Election are struggling to comply with HAVA. The LAST thing we need is a special election in 2009. Our governor is not being investigated by Patrick Fitzgerald (something he probably thanks God for everyday). And if there's "backroom deals" going on, you certainly can't tell from the buzz in the media and on the blogs. If anything, New York right now is the epitome of good, old-fashioned, knock down and drag out politics. Our voters can sit back, get some popcorn and watch the show. We are nothing if not entertaining, right?
It's easy to write a op-ed piece for the New York Times suggesting that special elections be had to stop governors from appointments. And that's why it is "Law In the Lounge" - something you talk about while getting that cup of coffee.
It's hard to decide whether precious state money should be spent to finance a special election in 2009 when you are facing a deficit that ballooned $10 billion in six months.
I take that back. It's not a hard decision. It's a no-brainer.