While New Jersey mourns the passing of a great statesman who dedicated his life to public service and philanthropy, lawyers and elected officials huddle to figure out what will happen to Frank Lautenberg’s seat in the United States Senate. An out-of-date law may cause taxpayers to foot the bill for litigation that is most likely to have only one result—a November 2013 election to fill the vacancy.
Unlike vacancies in the U.S. House of Representatives, the United States Constitution delegates the power to the states when filling a vacancy in the U.S. Senate. Under XVII Amendment, “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.”
States have adopted a number of different procedures for filling vacancies, including gubernatorial appointment and special election. In New Jersey, there are two election statutes that govern how the state must fill Senator Lautenberg’s Senate seat. Both allow for gubernatorial appointment of a temporary successor prior to a general or special election. However, they have conflicting language regarding when the election must be held—November 2013 or November 2014.
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