New England State Senates: Case Studies for Revisiting the Indirect Election of Legislators
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The University of New Hampshire Law Review Volume 19 Number 2 Article 4 5-1-2021 New England State Senates: Case Studies for Revisiting the Indirect Election of Legislators Tyler Quinn Yeargain Follow this and additional works at: https://scholars.unh.edu/unh_lr Part of the Law Commons Repository Citation Tyler Q., New England State Senates: Case Studies for Revisiting the Indirect Election of Legislators, 19 U.N.H. L. Rev. (2021). available at: https://scholars.unh.edu/unh_lr/vol19/iss2/4 This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in The University of New Hampshire Law Review by an authorized editor of University of New Hampshire Scholars' Repository. For more information, please contact [email protected]. ® Tyler Quinn Yeargain New England State Senates: Case Studies for Revisiting the Indirect Election of Legislators 19 U.N.H. L. Rev. 335 (2021) AUTHOR. Associate Director, Yale Center for Environmental Law and Policy. There are a great many people who made this article possible, and I wish to thank each of them. First, I extend my sincerest gratitude to the staff of the New Hampshire Department of State, Division of Archives and Record Management, especially Yvette Toledo, for their assistance in obtaining State Senate election results from the nineteenth century. This project would not have been possible without the excellent archives at their disposal and their willingness to help. Second, I am also greatly appreciative to the entire staff of the University of New Hampshire Law Review—Daniel Divis, Garrett Hall, Cory Greenleaf, Holly Salois, and Benjamin Winer—for their hard work in publishing such a non-traditional article. Third, I am immensely grateful that Dr. Peter Licari and Dr. Martin Wolf extended their expertise to providing advice and counsel on the development of this article. Fourth, and finally, I am deeply appreciative to David Nir for his consistent encouragement. 335 THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:2 (2021) I. THE HISTORY OF INDIRECT ELECTION .............................................. 340 A. The Adoption of Indirectly Elected Legislatures ........................................... 340 B. The Value of Indirect Election ...................................................................... 347 II. NEW ENGLAND’S INDIRECTLY ELECTED SENATES .......................... 352 A. How Vacancies Were Filled .......................................................................... 354 B. Selection Patterns ........................................................................................ 359 C. Controversies and Challenges ...................................................................... 371 III.EVALUATING THE NEW ENGLAND SENATES ..................................... 386 A. The Values of Indirect Election at Play in New England ............................. 386 B. The Impact on the State’s System of Checks and Balances ............................ 395 C. The Modern Relevance ................................................................................ 402 IV. CONCLUSION ......................................................................................... 404 336 NEW ENGLAND STATE SENATES When the U.S. Constitution was ratified in 1789, it provided for a bifurcated system of electing members of Congress. The House would be directly elected by the people; the Senate would be elected by the state legislatures. Congressional vacancies were filled in a similarly bifurcated manner. For House vacancies, governors were required to call special elections. But for Senate vacancies, state legislatures were empowered to fill them. 1 Given the direct and indirect composition of the House and Senate, respectively, this disparate treatment made some amount of sense. In the more than hundred years that followed, the system of indirect election failed. All too frequently, legislatures were gridlocked and unable to elect senators at all, leaving the state partially unrepresented. 2 When state legislatures were gerrymandered, a minority party could lose the popular vote and nonetheless win a legislative majority, granting the ability for it to elect a senator.3 The insider nature of the process allowed corruption and bribery to flourish. 4 And, of course, as American democracy grew stronger and as the government’s institutions were democratized, indirect election as a general concept aged poorly. More than a century later, in responses to these concerns, the Seventeenth Amendment was ratified, making the Senate directly elected and changing the way that Senate vacancies were filled.5 Under the Seventeenth Amendment, vacancies could be filled by a temporary gubernatorial election, a special election, or some combination of both. 6 The meaning of the Seventeenth Amendment’s clause pertaining to Senate vacancies is not apparent at first glance, and limited litigation—along with quite a bit of constitutional scholarship—has attempted to 1 U.S. CONST. art. I, § 2, cl. 1; § 3, cl. 2. If, however, the legislature was out of session when the Senate vacancy occurred, the Governor of the state was empowered to temporarily fill it for a term that expired when the legislature next convened. Id. 2 E.g., Vikram David Amar, Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment, 49 Vand. L. Rev. 1347, 1353 (1996). 3 E.g., Zachary D. Clopton & Steven E. Art, The Meaning of the Seventeenth Amendment and a Century of State Defiance, 107 Nw. U. L. Rev. 1181, 1190 (2013). 4 See Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U. L. Rev. 500, 538–41 (1997); see also Amar, supra note 2, at 1353–54; Clopton & Art, supra note 3 at 1189–90. 5 U.S. Const. amend. XVII (ratified 1913). 6 See id. 337 THE UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW 19:2 (2021) resolve some of the outstanding questions. When must special elections be called?7 Do they follow the same procedure as regular elections?8 Can a state wait until its next general election?9 Can the state require its governor to make a same-party appointment?10 Those questions largely remain unanswered. Substantially less attention has been focused on the states that inspired the indirect election of senators. The Maryland Constitution, adopted in 1776, provided for one of the country’s first indirectly elected legislative bodies.11 Every five years, voters would elect members of an electoral college, who would in turn elect the Maryland State Senate.12 Similar systems, though without the electoral college, were adopted in the 1776 South Carolina Constitution13 and the 1776 New Hampshire Constitution.14 The specific procedure contemplated by the Maryland Constitution inspired the Kentucky Constitution, which was adopted in 179215 and likely inspired 7 See generally Clopton & Art, supra note 3 (arguing that the Seventeenth Amendment requires immediate special elections to fill vacancies). 8 See generally Laura E. Little, An Excursion into the Uncharted Waters of the Seventeenth Amendment, 64 Temp. L. Rev. 629, 636 (1991) (discussing the Pennsylvania practice of allowing state parties, rather than the party’s voters, to select nominees for special elections in the context of special U.S. Senate elections). 9 See generally Clopton & Art, supra note 3 (arguing that the Seventeenth Amendment required immediate special elections). 10 See generally Vikram David Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hastings Const. L.Q. 727 (2008) (arguing that same-party appointment requirements are unconstitutional). But see generally Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How Best to Interpret the Seventeenth Amendment, 35 Hastings L.Q. 713 (2008) (arguing that the Seventeenth Amendment permits such requirements). 11 Md. Const. arts. XIV, XV (1776). 12 Id. 13 S.C. Const. art. III (1776). The indirectly elected upper chamber of the South Carolina General Assembly didn’t last for long. In the 1778 Constitution, it was renamed the Senate and was popularly elected. See S.C. Const. art. III (1778). 14 N.H. Const. para. 3 (1776) (“And that said House then proceed to choose twelve persons, being reputable freeholders and inhabitants within this colony . to be a distinct and separate branch of the Legislature by the name of a COUNCIL for this colony[.]”). As in South Carolina, the indirectly elected Council was later replaced; the 1784 Constitution renamed it the Senate and made it popularly elected—except with respect to vacancies. See N.H. Const. pt. II, para. 7, 14 (1784). 15 Joan Wells Coward, Kentucky in the New Republic: The Process of Constitution Making 28 (1979). 338 NEW ENGLAND STATE SENATES a similar provision in the Massachusetts Constitution, adopted in 1780.16 In turn, the Massachusetts provision was adopted into the Maine and New Hampshire constitutions in 1820 and 1784, respectively.17 The Maryland system was one of the Framers’ inspirations for the indirect election of United States Senators.18 It is repeatedly mentioned in the Federalist Papers as a well-functioning system with values warranting its adoption for the federal constitution.19 Despite that high praise, however, each state’s system failed spectacularly. Kentucky’s lasted just seven