Following the recent passing of Senator Diane Feinstein, California Governor announced the appointment of Laphonza Butler to complete Senator Feinstein's term in the U.S. Senate. Yesterday, Harvard Law Professor Stephen E. Sachs addressed the question of whether Ms. Butler's current residency in Maryland rendered her ineligible for appointment. Professor Sach's analysis focuses exclusively on the U.S. Constitution, but California law also has a say in the matter.
Since the office is a federal office, the starting point of any analysis must begin with federal law. The Seventeenth Amendment to the U.S. Constitution provides in relevant part:
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 U.S. Constitution therefore gives the states a role to play in temporary appointments. In the case of California, the applicable statute is Elections Code Section 10720 which provides in part:
(a) If a vacancy occurs in the representation of this state in the Senate of the United States, the Governor may appoint and commission an elector of this state who possesses the qualifications for the office to temporarily fill the vacancy until a person is elected at a statewide general election to hold office for the remainder of the unexpired term and is admitted to the vacated seat by the United States Senate. The person so elected shall hold office for the remainder of the unexpired term.
It is clear that the appointee must be an "elector", but who is an "elector"? Section 321 of the Elections Code defines “elector” as follows:
(a) “Elector” means a person who is a United States citizen 18 years of age or older and, except as specified in subdivision (b), is a resident of an election precinct in this state on or before the day of an election.
(b) “Elector” also means a person described in paragraph (2) of subdivision (b) of Section 300, who, except for the residence requirement specified in subdivision (a), is eligible to vote in this state and meets either of the following conditions:
(1) He or she was a resident of this state when he or she was last living within the territorial limits of the United States or the District of Columbia.
(2) He or she was born outside of the United States or the District of Columbia, his or her parent or legal guardian was a resident of this state when the parent or legal guardian was last living within the territorial limits of the United States or the District of Columbia, and he or she has not previously registered to vote in any other state.
(c) Each person qualifying as an elector under subdivision (b) shall be deemed to be a resident of this state for purposes of this code and Section 2 of Article II of the California Constitution.
It is unclear what the "day of an election" means in this case. Section 318 of the Election Code defines an “election” as “any election including a primary that is provided for under this code”. But, as Professor Sachs points out, this is an appointment not an election. He argues that based on history "elected" in the Seventeenth Amendment means a whole process of official choice, not only some first-past-the-post vote by the general citizenry". Whether the same is true of the Elections Code has yet to be decided.