William Tedards, Jr. v. Doug Ducey ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM PRICE TEDARDS, JR.; No. 19-16308
MONICA WNUK; BARRY HESS;
LAWRENCE LILIEN; ROSS TRUMBLE, D.C. No.
Plaintiffs-Appellants, 2:18-cv-04241-
DJH
v.
DOUG DUCEY, Governor of Arizona, OPINION
in his official capacity; MARTHA
MCSALLY,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted November 13, 2019
Pasadena, California
Filed February 27, 2020
Before: MILAN D. SMITH, JR., ERIC D. MILLER,
and DANIEL P. COLLINS, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Collins
2 TEDARDS V. DUCEY
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal of an
action, brought following the death of Arizona Senator John
McCain in 2018, challenging the constitutionality of an
Arizona statute that governs appointments and elections in
the aftermath of a vacancy in the United States Senate.
Senator McCain died on August 25, 2018, three days
before the primary election. Over four years remained in his
Senate term. Consistent with the requirements of Arizona
Revised Statute § 16-222(D), as amended, Governor Doug
Ducey (Republican) issued a writ of election to fill Senator
McCain’s vacant seat in November 2020, and appointed a
temporary Senator until the winner of the November 2020
election assumed office. The panel noted that by that time,
Arizona will have had a temporary appointee, currently
Senator Martha McSally, chosen by the Governor, for over
two years. Plaintiffs, Arizona voters and a would-be Senate
candidate, alleged that the November 2020 vacancy election
date and the 27-month interim appointment duration violated
the time constraints implicit in the Seventeenth Amendment
and impermissibly burdened their right to vote, as protected
by the First and Fourteenth Amendments. Plaintiffs further
challenged Arizona’s statutory mandates that the Governor
must make a temporary appointment and must choose a
member of the same party as the Senator who vacated the
office.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TEDARDS V. DUCEY 3
The panel noted that in 1913, the Seventeenth
Amendment fundamentally changed the structure of the
national government by providing that United States
Senators be “elected by the people.” Prior to the adoption of
the Seventeenth Amendment, the Constitution gave the
power of choosing Senators to the state legislatures. The
original provision also empowered a State Governor, in the
event of a vacancy arising during a legislative recess, to
make a “temporary” appointment pending the next
legislative session. The Seventeenth Amendment retained
this vacancy and appointment provision in modified form,
and it is that portion of the Amendment which the panel
addressed.
The panel first considered plaintiffs’ Seventeenth
Amendment challenge to the November 2020 vacancy
election date and the 21-month duration of appointed
representation. The panel noted that the meaning of the
Seventeenth Amendment has seldom been litigated, and no
body of doctrine provided robust guidance as to its proper
interpretation. The panel therefore used multiple modes of
analysis and sources of authority to decipher the
Amendment’s meaning. The panel concluded that the text
of the Seventeenth Amendment conferred some discretion
upon the States as to both the timing of an election to fill a
vacancy and the duration of an interim appointment, and that
the text was ambiguous as to the outer bounds of this
discretion. The panel did not find that related constitutional
provisions placed any precise temporal limitations upon
vacancy elections or appointments under the Seventeenth
Amendment. The panel’s review of the historical context
led it to disfavor any interpretation that permitted
excessively long vacancies, but the panel noted that the
context did not reveal any precise constraints. The
legislative history did not provide a clear view of the textual
4 TEDARDS V. DUCEY
interpretation possessed by the members of Congress who
voted in favor of the Seventeenth Amendment. The state
statutes enacted after the Seventeenth Amendment’s
ratification favored, but did not compel, an interpretation of
the Seventeenth Amendment that left States broad discretion
to schedule a vacancy election up until the next general
election preceded by some reasonable period of time in
which to hold the election.
The panel next turned to the four prior cases that have
interpreted the Seventeenth Amendment’s Vacancy Clause
at any length, and concluded that plaintiffs’ challenge was
foreclosed by binding precedents. Thus, the panel noted that
the Supreme Court had spoken to the meaning of the relevant
Seventeenth Amendment provisions in two cases. First, the
panel noted that in Valenti v. Rockefeller, a three-judge
district court, in considering a 29-month Senate seat vacancy
following Robert F. Kennedy’s assassination, had conducted
a detailed analysis of the relevant Seventeenth Amendment
provisions in both a majority and a dissenting opinion, and
had dismissed plaintiffs’ complaints. The Supreme Court
then summarily affirmed the majority’s dismissal. 292 F.
Supp. 851 (W.D.N.Y. 1968), summarily aff’d, 393 U.S. 405
(1969) (per curiam). Second, in Rodriguez v. Popular
Democratic Party, the Supreme Court opined on a related
constitutional question in part based on a particular
interpretation of the result it had summarily affirmed in
Valenti, and also endorsed some of the reasoning of the
Valenti three-judge district court majority. 457 U.S. 1, 10–
12 (1982). The panel concluded that it was bound by
Rodriguez’s 29-month interpretation of the binding result of
Valenti. The panel further interpreted Rodriguez to endorse
only a State’s discretion to postpone a vacancy election until
a general election.
TEDARDS V. DUCEY 5
Turning to the challenged Arizona law, the panel held
that the timing provision of A.R.S. § 16-222(D) as applied
to the McCain vacancy was a permissible exercise of the
State’s discretion under the Seventeenth Amendment.
Accordingly, neither Governor Ducey’s writ of election nor
Senator McSally’s appointment was a violation thereof. The
panel therefore affirmed the district court’s dismissal of
Counts I and II of plaintiffs’ amended complaint to the extent
that those counts related to the timing of the vacancy election
and the duration of appointed representation under the
Seventeenth Amendment.
Addressing plaintiffs’ First and Fourteenth Amendment
challenges, the panel assumed, without deciding, that
regulation of the timing of a vacancy election was at least a
“burden” for purposes of review under Burdick v. Takushi,
504 U.S. 428 (1992). However, because the panel held that
the Seventeenth Amendment authorized at least as long of
an interval before the vacancy election as was challenged
here, it concluded that the burden thereby posed was
necessarily a “reasonable” one. The panel held that plaintiffs
failed to plausibly allege that the timing of the vacancy
election was not justified by “important” state interests.
Given that the burden of this timing on plaintiffs’ right to
vote was “reasonable” and “nondiscriminatory,” the
“important” state interests were sufficient to affirm the
dismissal of plaintiffs’ First and Fourteenth Amendment
challenges.
The panel held that plaintiffs lacked standing to
challenge the appointment mandate and same-party
restrictions in A.R.S. § 16-222(D). The panel held that given
that Arizona’s legislature empowered the state governor to
make temporary appointments, Governor Ducey
unquestionably had the authority to appoint Martha McSally
6 TEDARDS V. DUCEY
as a temporary replacement for Senator McCain. Plaintiffs
alleged no facts rebutting Governor Ducey’s statement on
appeal that he would have appointed Senator McSally
regardless of the requirement that he name an interim
Senator and regardless of the requirement that the appointee
share Senator McCain’s political party. Accordingly, the
panel held that plaintiffs suffered no injuries from the
appointment of Senator McSally that were fairly traceable to
§ 16-222(C), and suffered no injury attributable to the mere
existence of § 16-222(C) since it had not affected them. This
lack of traceability was fatal to standing.
Concurring in part and concurring in the judgment,
Judge Collins agreed with the majority that the district court
properly dismissed plaintiffs’ various constitutional
challenges to the Arizona statute governing the filling of
senatorial vacancies, but in Judge Collins’s view the issues
raised in this case could be readily resolved under existing
precedent. Judge Collins therefore did not join the analysis
as to the meaning of the Seventeenth Amendment in
section I(A) of the “Analysis” section of the majority’s
opinion. Instead, he joined only Parts I(B), II, and III of the
“Analysis” section, and concurred in the judgment.
COUNSEL
Michael P. Persoon (argued) and Thomas H. Geoghegan,
Despres Schwartz and Geoghegan Ltd., Chicago, Illinois;
Michael Kielsky, Udall Shumway, Mesa, Arizona; for
Plaintiffs-Appellants.
Dominic E. Draye (argued), Greenberg Traurig LLP,
Phoenix, Arizona; Anni Lori Foster, General Counsel,
Office of the Governor, Phoenix, Arizona; Brett W. Johnson
TEDARDS V. DUCEY 7
and Colin Ahler, Snell & Wilmer LLP, Phoenix, Arizona;
James E. Tyrrell III, Venable LLP, Washington, D.C.; for
Defendants-Appellees.
Spencer G. Scharff, Scharff PLLC, Phoenix, Arizona, for
Amici Curiae Vox Populi Foundation and Arizona
Advocacy Network Foundation.
Theresa Amato and Carlton Mosley, Shearman & Sterling
LLP, Washington, D.C., for Amici Curiae Professors Erwin
Chemerinsky, Helen Hershkoff, Alexander Keyssar,
Lawrence Lessig, and Sanford Levinson.
Michael A. Curtis, Law Offices of Michael A. Curtis,
Phoenix, Arizona; Robert S. Lynch and Caroline G. Lynch,
Robert S. Lynch & Associates, Phoenix, Arizona; for Amici
Curiae Irrigation and Electrical Districts’ Association of
Arizona (IEDA) and Arizona Municipal Power Users’
Association (AMPUA).
OPINION
M. SMITH, Circuit Judge:
In 1913, the Seventeenth Amendment fundamentally
changed the structure of our national government by
providing that United States Senators be “elected by the
people.” U.S. Const. amend. XVII para. 1. Prior to the
adoption of the Seventeenth Amendment, the Constitution
gave the power of choosing Senators to the state legislatures.
Id. art. I, § 3 (amended 1913). The original provision also
empowered a State Governor, in the event of a vacancy
arising during a legislative recess, to make a “temporary”
appointment pending the next legislative session. Id. The
8 TEDARDS V. DUCEY
Seventeenth Amendment retained this vacancy and
appointment provision in modified form, and it is that
portion of the Amendment with which we are primarily
concerned in this case. The relevant portion of the
Amendment reads as follows:
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.
U.S. Const. amend. XVII para. 2.
Arizona Senator John McCain died in August 2018,
leaving vacant one of Arizona’s two U.S. Senate seats.
Pursuant to Arizona law, the people of Arizona will fill the
vacancy by election in November 2020. By that time,
Arizona will have had a “temporary” appointee, currently
Senator Martha McSally, for over two years. Plaintiffs,
Arizona voters and a would-be Senate candidate, challenge
the constitutionality of the Arizona statute that governs
appointments and elections in the aftermath of a Senate
vacancy.
First, Plaintiffs argue that the November 2020 vacancy
election date and the 27-month interim appointment duration
violate the time constraints implicit in the Seventeenth
Amendment. The district court dismissed this challenge for
failure to state a claim, finding no authority for invalidating
a state statute on this basis. We affirm. Although we find
Plaintiffs’ interpretation a possible one based on the text and
TEDARDS V. DUCEY 9
history of the Seventeenth Amendment, we conclude that it
is foreclosed by binding precedents.
Second, Plaintiffs argue that the November 2020
vacancy election date impermissibly burdens their right to
vote as protected by the First and Fourteenth Amendments.
The district court also dismissed this challenge for failure to
state a claim, finding that important State regulatory interests
justify what is a reasonable and nondiscriminatory
restriction on Plaintiffs’ right to vote. We agree, and affirm.
Third and finally, Plaintiffs challenge Arizona’s
statutory mandates that the Governor must make a temporary
appointment and must choose a member of the same party as
the Senator who vacated the office. Plaintiffs argue that the
appointment mandate violates the Seventeenth
Amendment’s specified separation of State powers, as well
as the Fourteenth Amendment and the Elections Clause. The
district court dismissed this challenge for failure to state a
claim, rejecting Plaintiffs’ interpretation of the relevant
Seventeenth Amendment language. Plaintiffs argue that the
same-party restriction violates the Qualifications Clauses in
the Seventeenth Amendment and other constitutional
provisions, as well as the First Amendment and the Elections
Clause. The district court dismissed this challenge for lack
of standing. The district court found no harm on the basis of
representation by a Republican and no redressability where
the Republican Governor would appoint a Republican
anyway. We affirm both of these dismissals for lack of
standing.
10 TEDARDS V. DUCEY
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
In November 2016, the people of Arizona reelected
Senator John S. McCain III (Republican) to a sixth term in
the United States Senate. In July 2017, doctors diagnosed
Senator McCain with an aggressive brain tumor whose
victims have only a fourteen-month average survival time. 1
In May 2018, Governor Ducey signed into law an
amendment to Arizona’s congressional vacancy statute,
Arizona Revised Statutes (A.R.S.) § 16-222. See 2018 Ariz.
Sess. Laws 2308. Pursuant to the amended law, if a Senate
seat becomes vacant 150 days or fewer before the next
primary election (or between the primary and the general
election), the people of Arizona will not fill the vacancy by
election until the following general election two years later.
See A.R.S. §§ 16-222(A), (D). 2 The Governor must
1
Susan Scutti, Sen. John McCain has brain cancer, aggressive
tumor surgically removed, CNN (July 20, 2017),
https://www.cnn.com/2017/07/19/health/gupta-mccain-glioblastoma/
index.html.
2
As amended, A.R.S. § 16-222(A) provides that “[w]hen a vacancy
occurs in the office of United States senator . . . , and except as provided
in subsection D of this section, the vacancy shall be filled at the next
general election.” 2018 Ariz. Sess. Laws 2308 (emphasis added).
A.R.S. § 16-222(D) provides that:
If a vacancy in the office of United States senator
occurs one hundred fifty days or less before the next
regular primary election date, . . . the vacancy [will be]
filled at the second regular general election held after
the vacancy occurs . . . .
TEDARDS V. DUCEY 11
“appoint a person to fill the vacancy” in the interim, 3 who is
“of the same political party as the person vacating the
office.” Id. § 16-222(C). At the time the legislature passed
this amendment, the August 2018 primary was already fewer
than 150 days away. Senator McCain was still serving as
Senator at that time. 4
Id. at 2308–09. In 2018, Arizona law provided for regular primary
elections “[o]n the tenth Tuesday prior to a general . . . election.” 2009
Ariz. Sess. Laws 1268, amended by 2019 Ariz. Sess. Laws Ch. 246
(current version at A.R.S. § 16-201). The 2018 general election was
scheduled nationally for November 6, 2018. See 2 U.S.C. §§ 1, 7.
Therefore, Arizona’s primaries were held on August 28, 2018.
Subtracting 150 days from August 28, 2018, yields a date of March 31,
2018, which is slightly more than seven months before November 6,
2018. Arizona has since amended its primary election schedule to make
the primaries fall earlier in August. See A.R.S. § 16-201 (amended
2019).
Prior to the May 2018 amendment, A.R.S. § 16-222 contained no
special provision for vacancies occurring within a particular time period
before the next election. A.R.S. § 16-222(A) provided only that “[w]hen
a vacancy occurs in the office of United States senator . . . , the vacancy
shall be filled at the next general election.” 2012 Ariz. Sess. Laws 2543,
amended by 2018 Ariz. Sess. Laws 2308. In the event of a vacancy
occurring “after the close of petition filing” for the primary, a related
statute gave the power of candidate nomination to the political party of
the vacating Senator. A.R.S. § 16-343 (last amended by 2017 Ariz. Sess.
Laws 959).
3
As amended, A.R.S. § 16-222(C) provides that, “except as
provided in subsection D of this section, [the appointee] shall serve until
the person elected at the next general election is qualified and assumes
office.” 2018 Ariz. Sess. Laws 2308 (emphasis added).
4
Bill Hutchinson, Sen. John McCain showing ‘maverick’ spirit even
as he battles brain cancer, ABC News (May 6, 2018),
https://abcnews.go.com/ABCNews/sen-john-mccain-showing-maverick-
spirit-battles-brain/story?id=54974427.
12 TEDARDS V. DUCEY
Senator McCain died on August 25, 2018, three days
before the primary election. 5 Over four years remained in
his Senate term. Consistent with the requirements of § 16-
222(D), as amended, Governor Doug Ducey (Republican)
issued a writ of election to fill Senator McCain’s vacant seat
in November 2020. Consistent with the requirements of
§ 16-222(C), Governor Ducey appointed former Arizona
Senator Jon Kyl (Republican) to serve as Senator until the
winner of the November 2020 election assumed office.
Senator Kyl made clear that he would not personally seek
election in 2020. 6
At the time of these developments, the contest for
Arizona’s other Senate seat was already on the ballot for
November 2018. Competing to replace Senator Jeff Flake
(Republican), who had decided not to seek reelection, were
Representative Kyrsten Sinema (Democrat) and
Representative Martha McSally (Republican).
Representative Sinema won the election with 50.0% of the
vote compared to Representative McSally’s 47.6%. 7
In mid-December 2018, Senator Kyl announced that he
would resign at the end of the year so that a subsequent
appointee could serve the full two years of the 116th
5
Robert D. McFadden, John McCain, War Hero, Senator,
Presidential Contender, Dies at 81, N.Y. Times (Aug. 25, 2018),
https://www.nytimes.com/2018/08/25/obituaries/john-mccain-dead.html.
6
Jonathan Martin & Danny Hakim, Jon Kyl, Former Senator, Will
Replace McCain in Arizona, N.Y. Times (Sept. 4, 2018),
https://www.nytimes.com/2018/09/04/us/politics/arizona-senate-
mccain.html.
7
Green Party candidate Angela Green, who officially endorsed
Sinema days before the election, received 2.4% of the vote.
TEDARDS V. DUCEY 13
Congress and seek election in 2020. 8 Days later, Governor
Ducey announced that he had appointed Representative
McSally to succeed Senator Kyl. 9
At present, Senators Sinema and McSally represent
Arizona in the United States Senate.
II. Procedural Background
In late November 2018, five registered Arizona voters—
two Democrats, one Independent, one Libertarian, and one
Republican—filed suit against Governor Ducey and Senator
Kyl pursuant to 42 U.S.C. § 1983. Plaintiffs alleged that the
Governor’s implementation of A.R.S. § 16-222 violated
their constitutional rights under the Seventeenth
Amendment and several other provisions of the U.S.
Constitution. Their amended complaint challenged the
November 2020 date of the vacancy election (Count I), 10 the
8
Sean Sullivan & John Wagner, Kyl plans to resign Arizona Senate
seat, clearing the way for another GOP appointment, Wash. Post (Dec.
14, 2018), https://www.washingtonpost.com/politics/kyl-plans-to-
resign-arizona-senate-seat-clearing-the-way-for-another-gop-appointment/
2018/12/14/12bae21e-ffb1-11e8-83c0-b06139e540e5_story.html.
9
Press Release, Office of Governor Ducey, Governor Ducey
Appoints Martha McSally to U.S. Senate (Dec. 18, 2018),
https://azgovernor.gov/governor/news/2018/12/governor-ducey-appoints-
martha-mcsally-us-senate.
10
Count I alleged that the “delay[]” of the vacancy election until
November 2020, being “significantly greater than a year” after the
occurrence of the vacancy, violates Plaintiffs’ right to fill the vacancy by
election under the Seventeenth Amendment. Count I also alleged that
this delay, by encompassing more than a “reasonable and brief interim
period[] necessary to hold an orderly election,” violates Plaintiffs’ right
to continuous direct representation under the Fourteenth Amendment
Privileges or Immunities Clause. Count I further alleged that this delay,
14 TEDARDS V. DUCEY
27-month duration and mandatory nature of the interim
appointment (Count II), 11 and the same-party restriction on
the interim appointee (Count III). 12 Plaintiff Hess later
alleged that he sought to be considered for the interim
appointment, but was barred from consideration as a
registered Libertarian.
In late December 2018, Plaintiffs filed a motion for
preliminary and permanent injunction. Plaintiffs sought an
order directing that the election to fill the vacancy be held
“as soon as practicable, and not longer than one year from
being “just too long” and a “de facto denial of a special election,”
severely burdens Plaintiffs’ right to vote in violation of the First
Amendment and the Fourteenth Amendment Equal Protection Clause.
11
Count II alleged that, by “mandating” that the Governor make an
interim appointment, § 16-222(C) violates the Seventeenth
Amendment’s provision that the state legislature may only “empower”
the Governor to make an appointment. Count II further alleged that, by
providing that the people will have appointed representation for
approximately 27 months, § 16-222(D) violates Plaintiffs rights under
the Seventeenth Amendment to be subject only to “temporary”
appointments. Count II also alleged that the 27-month appointment
duration violates Plaintiffs’ rights under the Fourteenth Amendment
Privileges or Immunities Clause to have elected representation at all
times “except for the brief interim periods necessary to conduct an
orderly election.”
12
Count III alleged that, by restricting the Governor’s appointment
discretion to a person of the same political party as the vacating Senator,
§ 16-222(D) exceeds the state legislature’s authority under the
Seventeenth Amendment, the Elections Clause, and the Qualifications
Clause. Count III further alleged that the same-party restriction violates
Plaintiffs’ First Amendment rights by “giving the imprimatur of state law
to . . . a particular partisan viewpoint.”
TEDARDS V. DUCEY 15
the date the vacancy arose.” Defendants, by then Governor
Ducey and Senator McSally, moved to dismiss. 13
In June 2019, after full briefing and oral argument, the
district court granted Defendants’ motion to dismiss. The
court dismissed Counts I and II for failure to state a claim.
The court disagreed that the Seventeenth Amendment
constrains state discretion as Plaintiffs had alleged with
regard to the date of the vacancy election, the duration of
appointed representation, or the mandate that the Governor
make an appointment. The court also concluded that the
November 2020 vacancy election date was a reasonable
burden on Plaintiffs’ First and Fourteenth Amendment right
to vote and was justified by important state interests. The
court dismissed Count III for lack of standing. The court
concluded that any harm attributable to representation by a
Republican was too speculative to constitute a cognizable
injury. The court further concluded that redressability was
lacking because Governor Ducey could keep Senator
McSally in place even without the statutory same-party
requirement. Since it found no viable claims, the court
denied Plaintiffs’ motion for a preliminary and permanent
injunction.
13
Defendants argued that the Constitution gives States broad
discretion to establish procedures for filling Senate vacancies and that
§ 16-222 complies with the “plain language” of the Seventeenth
Amendment. They argued that binding precedent allows at least a 29-
month Senate appointment. They also argued that Arizona’s procedure
for holding a vacancy election is reasonable, nondiscriminatory, and in
furtherance of important state interests. Alternately, Defendants argued
that this case presents a nonjusticiable political question. As to the same-
party requirement, Defendants argued that the requirement is
constitutional under both the First Amendment and the Qualifications
Clause, and that Plaintiffs lack standing to challenge it.
16 TEDARDS V. DUCEY
Plaintiffs timely appealed, and thereafter moved to
expedite this appeal. We granted Plaintiffs’ motion to
expedite.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s grant of a motion to dismiss
and all constitutional questions. Mahoney v. Sessions, 871
F.3d 873, 877 (9th Cir. 2017).
ANALYSIS
I. Seventeenth Amendment Challenge to Vacancy
Election Date and Duration of Appointment
We begin with Plaintiffs’ as-applied Seventeenth
Amendment challenges to the November 2020 vacancy
election date and the 27-month duration of appointed
representation. We consider these two challenges together
because both require an analysis of what, if any, implicit
time constraints exist within the Seventeenth Amendment.
The meaning of the Seventeenth Amendment has seldom
been litigated, and no body of doctrine provides us with
robust guidance as to its proper interpretation. We therefore
undertake here to decipher the Amendment’s meaning using
multiple modes of analysis and sources of authority. After
reaching a conclusion regarding that meaning, we turn to the
law challenged in this case.
A. Meaning of the Seventeenth Amendment
The parties hold very different views of the extent to
which the Seventeenth Amendment restricts state discretion
regarding the timing of a vacancy election and the duration
of an interim appointment. Plaintiffs argue that the
TEDARDS V. DUCEY 17
Seventeenth Amendment gives States very little
discretion—that it requires a State to hold a vacancy election
as quickly after the occurrence of a vacancy as the State
holds a general election after petition filing. Plaintiffs argue
that in most cases this means that a vacancy election will be
held within, and an interim appointment will last no longer
than, one year. Defendants argue that the Seventeenth
Amendment gives States very broad discretion—that it does
not carry any time constraint on vacancy elections or interim
appointments at all beyond the deadline imposed by the end
of the vacant term.
The Supreme Court has spoken to the meaning of the
relevant Seventeenth Amendment provisions in two cases.
First, in Valenti v. Rockefeller, a three-judge district court
conducted a detailed analysis of the relevant provisions in
both a majority and a dissenting opinion, and the Supreme
Court summarily affirmed the majority. 292 F. Supp. 851
(W.D.N.Y. 1968), summarily aff’d, 393 U.S. 405 (1969).
Second, in Rodriguez v. Popular Democratic Party, the
Supreme Court opined on a related constitutional question in
part based on a particular interpretation of the result it had
summarily affirmed in Valenti, and also endorsed some of
the reasoning of the Valenti three-judge district court
majority. 457 U.S. 1, 10–12 (1982).
Normally, a summary affirmance binds us to the precise
result affirmed, yet it remains incumbent upon us to give full
consideration to the issues and articulate our own
independent analysis. See Anderson v. Celebrezze, 460 U.S.
780, 784–85 & n.5 (1983); Washington v. Confederated
Bands and Tribes of the Yakima Indian Nation, 439 U.S.
463, 476 n.20 (1979). In this instance, the Supreme Court
has provided some additional analysis of its own, see
Rodriguez, 457 U.S. at 10–12, but in an opinion that “did not
18 TEDARDS V. DUCEY
. . . purport to be a thorough examination” of the Seventeenth
Amendment. District of Columbia v. Heller, 554 U.S. 570,
623 (2008). We therefore undertake a full analysis here, but
we do not reach any dispositive interpretive conclusions
until we come to Rodriguez and consider our analysis in light
of the reasoning therein.
Our analysis proceeds as follows, taking inspiration from
the method by which the Supreme Court analyzed the
meaning of the then little-litigated Second Amendment in
District of Columbia v. Heller 14: We begin with a close
14
In Heller, the Supreme Court announced its first “thorough
examination of the Second Amendment.” 554 U.S. at 623. Writing for
the majority, Justice Scalia began with a textual analysis aiming to
identify the meaning of the Second Amendment as it “would . . . have
been known to ordinary citizens in the founding generation.” Id. at 576–
77. In the process of analyzing the text, he considered the natural and
logical reading of the text on close examination; other uses of identical
language elsewhere in the Constitution; founding-era dictionary
definitions; other uses of similar language in such founding-era sources
as The Federalist Papers and State constitutions; and the historical
circumstances motivating the founders to codify the Second Amendment
in the Constitution. Id. at 576–600.
Justice Scalia devoted a second section to greater analysis of the
contemporary State constitutions codifying a similar right. Id. at 600–
03. He next considered the Amendment’s drafting history, though he
expressed doubt about relying on analysis of prior rejected proposals. Id.
at 603–05. He then considered postratification interpretation, as
evidenced by commentary, case law, and legislation, both close in time
to ratification and specifically in the post-Civil War context. Id. at 605–
19. Finally, he considered “whether any of [the Court’s] precedents
foreclose[d]” the majority’s interpretation. Id. at 619. In that discussion,
he specifically rejected reliance on United States v. Miller, 307 U.S. 174
(1939), which “did not even purport to be a thorough examination of the
Second Amendment,” and in which only one party had (only minimally)
briefed the Amendment’s history. Id. at 623–24 (discussing).
TEDARDS V. DUCEY 19
examination of the Seventeenth Amendment’s text. In
subsection 1, we attempt to discern the most natural reading
of the text standing alone. In subsection 2, we consider the
text in the context of related constitutional provisions.
Subsection 3 then considers the text in the context of the
historical circumstances motivating Congress and the
ratifying States to amend the Constitution. In subsection 4,
we consider the interpretations of the Seventeenth
Amendment provided by the sponsor of the final version in
the Senate and the author of a materially similar version in
the House. In subsection 5, we consider the interpretations
evidenced by state legislative enactments in the immediate
aftermath of the Seventeenth Amendment’s ratification.
Finally, in subsection 6, we analyze prior cases interpreting
the relevant portion of the Seventeenth Amendment,
including and especially Valenti and Rodriguez, and come to
our ultimate conclusion.
1. Text
We begin with the text of the Seventeenth Amendment
standing alone. The second paragraph of the Seventeenth
Amendment (hereinafter the Vacancy Clause) comprises
two subclauses. We refer to the first as the principal clause:
When vacancies happen in the representation
of any State in the Senate, the executive
Writing for four dissenting Justices, Justice Stevens likewise
focused on “the most natural reading of the Amendment’s text and the
interpretation most faithful to the history of its adoption.” Id. at 638
(Stevens, J., dissenting). He nevertheless reached a different conclusion
from the majority, which he argued was required by Miller. Id. at 637–
40.
20 TEDARDS V. DUCEY
authority of such State shall issue writs of
election to fill such vacancies: . . .
U.S. Const. amend. XVII para 2. We refer to the second as
the proviso:
. . . 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.
Id.
The principal clause begins with a trigger: “When
vacancies happen in the representation of any State in the
Senate, . . . .” This trigger does not expressly invoke the
discretion of the state legislature or any other decisionmaker.
We read the word “when” to denote both “immediately
after” and “every time that.” Thus, every vacancy
immediately triggers the Vacancy Clause when it happens.
The trigger gives no express guidance as to the types of
events that cause a vacancy to “happen,” but no ambiguity
on that point is before us. We have no doubt that the death
of a Senator causes a vacancy to happen.
The principal clause then directs that “. . . the executive
authority of such State shall issue writs of election to fill
such vacancies: . . . .” We assume “executive authority”
refers to a state’s Governor, but we need not consider
whether a Governor could delegate the relevant authority to
an executive agency or other executive officer. We interpret
the word “shall” as imposing a mandatory obligation on the
Governor. See Zachary D. Clopton & Steven E. Art, The
Meaning of the Seventeenth Amendment and a Century of
State Defiance, 107 Nw. U. L. Rev. 1181, 1202 n.79 (2013)
TEDARDS V. DUCEY 21
(canvassing uses of the word “shall” in the Constitution, all
of which are obligatory); accord Judge v. Quinn, 612 F.3d
537, 547 (7th Cir. 2010) (Judge I), amended by 387 F. App’x
629 (7th Cir. 2010) (Judge II), cert. denied sub nom. Quinn
v. Judge, 563 U.S. 1032 (2011).
A writ of election is the traditional device for initiating a
popular election. Id. at 552 (collecting evidence regarding
writs of election from the Glorious Revolution, the Founding
period, the Seventeenth Amendment era, and the present
day). A writ of election “plays the important administrative
role of authorizing state officials to provide for the myriad
details necessary for holding an election (printing ballots,
locating voting places, securing election personnel, and so
on).” Id. At the time the Seventeenth Amendment was
drafted, “it was settled that the state executive’s power to
issue a writ of election carried with it the power to establish
the time for holding an election, but only if the time had not
already been fixed by law.” Id. (citing, inter alia, George
W. McCrary, A Treatise on the American Law of Elections
166 (2d ed. 1880)). The “writ of election” reference thus
appears to allow some discretion on the part of the State
Governor or legislature to choose the date on which the
election will be held.
We interpret the phrase “writs of election to fill such
vacancies” also as a cross-reference to the Seventeenth
Amendment’s first paragraph, which states that Senators
shall be “elected by the people” of each state, and which
provides the qualifications for electors. U.S. Const. amend.
XVII para 1. We thus understand the Vacancy Clause to
require a writ of election that orders an election by the
people, where “the people” is composed of those individuals
having the requisite qualifications to vote in a Senate
election.
22 TEDARDS V. DUCEY
We read “to fill such vacancies” to refer to the election
of a Senator who will represent the state for the remainder of
the term in which the vacancy occurred. This language
appears to assume that a non-de minimis period of time
remains in the term, and that an orderly election is capable
of filling it. That is, the duty to call an election might not
apply if the vacancy happens so late in the term that it is not
feasible to hold an orderly election quickly enough that the
elected Senator will serve for more than a de minimis period
of time. Cf. ACLU v. Taft, 385 F.3d 641, 648 (6th Cir. 2004)
(citing Jackson v. Ogilvie, 426 F.2d 1333, 1336–37 (7th Cir.
1970)). This language may also suggest that the State should
leave some non-de minimis period of the vacancy for the
people to fill by election to the extent it is within the State’s
discretion to do so.
The proviso begins with the authorization, “Provided,
That the legislature of any State may empower the executive
authority thereof to make temporary appointments . . . .”
This language appears to give the legislature discretion as to
whether the State will utilize the mechanism of temporary
appointments. 15 We interpret the phrase “make temporary
appointments,” by reference to the Senate vacancy invoked
by the principal clause, to mean appoint a person to serve,
temporarily, as Senator in the vacant seat.
The key issue here is the word “temporary.” On its face,
the term “temporary” is vague. In context, however, we are
15
We decline to address here whether the state legislature’s
discretion extends so far as to encompass mandating that the executive
make appointments, or defining the qualifications of appointees. We
therefore also do not address how much, if any, discretion regarding
appointments the proviso preserves for the state executive. As we
explain in section 0, infra, we find that Plaintiffs lack standing to raise
these arguments.
TEDARDS V. DUCEY 23
able to discern some meaning. First, we think the term must
be read in relation to the six-year term of a Senator stated in
the preceding paragraph. We would have difficulty reading
it to approach anything nearing that full six-year term.
Second, the proviso concludes with language placing a
specific limit on the duration of “temporary”: “. . . until the
people fill the vacancies by election as the legislature may
direct.” The tenure of a Governor’s appointee is thus limited
by the timing of a popular election to fill the vacancy.
Without more context, however, this language does not
establish the precise amount of time that may elapse before
the Seventeenth Amendment compels an election by the
people to fill the vacancy. Indeed, this language expressly
grants the state legislature some degree of discretion
regarding that timing.
Contrary to the Third Circuit in Trinsey v. Pennsylvania,
941 F.2d 224 (3d Cir. 1991), cert. denied, 502 U.S. 1014
(1991), we do not read the proviso’s two express references
to state legislative discretion—“the legislature of any State
may empower” and “as the legislature may direct”—as
creating state legislative discretion over the whole of the
Vacancy Clause. See id. at 234. Rather, we read these grants
of discretion as modifying the specific terms they
immediately relate to within the proviso. Cf. Barnhart v.
Thomas, 540 U.S. 20, 26 (2003) (explaining the “‘rule of the
last antecedent,’ according to which a limiting clause or
phrase . . . should ordinarily be read as modifying only the
noun or phrase that it immediately follows”). Thus, the first
grant confers discretion as to whether a state legislature
“empower[s]” the Governor “to make temporary
appointments.” The second grant confers discretion as to the
“direct[ing]” of a vacancy “election.” To read either grant
24 TEDARDS V. DUCEY
of discretion more broadly would render the other grant
superfluous.
Instead, we agree with the Seventh Circuit in Judge I that
“as the legislature may direct” does not modify the principal
clause’s mandate that a Governor issue a writ of election
when a vacancy happens. See 612 F.3d at 549. We further
agree with the Seventh Circuit that the proviso acts as a
qualifier on the principal clause, rather than as an alternative
option for responding to Senate vacancies. See id. at 551.
In sum, the text of the Seventeenth Amendment confers
some discretion upon the States as to both the timing of an
election to fill a vacancy and the duration of an interim
appointment. The text is ambiguous as to the outer bounds
of this discretion.
2. Constitutional Context
We now consider other constitutional provisions closely
related to the Seventeenth Amendment. Portions of the
Seventeenth Amendment Vacancy Clause appear in, or
cross-reference, sections 2, 3, and 4 of Article I of the
unamended Constitution. The meaning of identical, similar,
or explanatory language in these provisions has the potential
to bring the meaning of the Vacancy Clause into sharper
focus.
The Seventeenth Amendment Vacancy Clause
specifically replaced the following language from Article I,
section 3, of the unamended Constitution:
. . . and if Vacancies happen by Resignation,
or otherwise, during the Recess of the
Legislature of any State, the Executive
thereof may make temporary Appointments
TEDARDS V. DUCEY 25
until the next Meeting of the Legislature,
which shall then fill such Vacancies.
U.S. Const. art. I, § 3, cl. 2, amended by U.S. Const. amend.
XVII (hereinafter the Unamended Vacancy Clause). The
Seventeenth Amendment Vacancy Clause nevertheless
retains much of this language. 16
Most notably for our purposes, both Vacancy Clauses
contain temporal limitations, including specifically that
appointments be “temporary.” The Unamended Vacancy
Clause provided two other express limitations: the trigger is
limited to vacancies that happen “during the Recess of the
Legislature of any State,” and the appointment lasts only
“until the next Meeting of the Legislature, which shall then
fill such Vacancies.” The Seventeenth Amendment Vacancy
Clause, however, provides just one other express limitation:
the appointment lasts only “until the people fill the vacancies
by election as the legislature may direct.” The Seventeenth
Amendment Vacancy Clause thus has a broader reach than
16
We provide a blackline for easy comparison:
. . . and if When Vacancies happen by Resignation, or
otherwise in the representation of any State in the
Senate, during the Recess of the Legislature of any
State, 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 may to make temporary
Appointments until the next Meeting of the
Legislature, which shall then people fill such the
Vacancies by election as the legislature may direct.
See U.S. Const. amend. XVII para. 2; id. art. I § 3, cl. 2 (additions in
underline, omissions in strikethrough) (capitalization differences
omitted).
26 TEDARDS V. DUCEY
the Unamended Vacancy Clause, in that it applies
throughout a Senate term. It is also more ambiguous than
the Unamended Vacancy Clause, in that meetings of the state
legislature occurred on regular schedules, whereas a popular
vacancy election would not necessarily coincide with a
regularly scheduled event.
Plaintiffs argue that the Seventeenth Amendment’s
reference to “temporary appointments” invokes a precise
temporal meaning that this phrase had in the Unamended
Vacancy Clause. Under the Unamended Vacancy Clause, a
“temporary” appointment lasted no longer than the
maximum interval between state legislative sessions. At the
time that the Unamended Vacancy Clause was drafted, it
appears that States held legislative sessions at least once a
year. See Clopton & Art, supra, at 1211 n.119 (collecting
state constitutions). As the Framers understood the
provision, the maximum duration of a “temporary”
appointment was thus one year. 17 See, e.g., S. Rep. No. 33-
385, at 1–2 (1854) (concluding that an appointed Senator’s
right of representation had expired upon the closing of the
next legislative session following appointment). However,
at the time that the Seventeenth Amendment was drafted,
17
Indeed, delegates to the Philadelphia Convention doubted whether
it was wise to entrust a Senate appointment power to State Governors at
all, but their concerns were assuaged by assurances of this time
constraint. See James Madison, Notes on the Debates in the Federal
Convention, Aug. 9, 1787 (“Mr. WILSON objected to vacancies in the
Senate being supplied by the Executives of the States. It was unnecessary
as the Legislatures will meet so frequently. It removes the appointment
too far from the people . . . . Mr. RANDOLPH thought it necessary in
order to prevent inconvenient chasms in the Senate. In some States the
Legislatures meet but once a year. As the Senate will have more power
& consist of a smaller number than the other House, vacancies there will
be of more consequence. The Executives might be safely trusted he
thought with the appointment for so short a time.”) (emphasis added).
TEDARDS V. DUCEY 27
many States held legislative sessions only every other year.
Valenti v. Rockefeller, 292 F. Supp. 851, 864 (W.D.N.Y.
1968), summarily aff’d, 393 U.S. 405 (1969). The maximum
duration of a “temporary” appointment then, assuming the
permissible duration evolved with changing practice, 18 was
therefore two years. These discrete time limits (one year or
two years) are potential interpretations of the term
“temporary” in the Seventeenth Amendment. 19
However, the Seventeenth Amendment’s omission of the
very language from the Unamended Vacancy Clause that
18
The duration of actual interim appointments did grow longer. See
Valenti, 292 F. Supp. at 864 (finding that 32 of 179 appointees between
1789 and 1913 served for more than one year); Clopton & Art, supra, at
1211 n.120 (reporting based on “the aid of modern technology and more
accurate sources” that only 21 pre-Seventeenth Amendment appointees
served longer than one year, only one of whose tenure occurred during
the first fifty years after the unamended Constitution was ratified).
19
Plaintiffs also invite us to also interpret the term “temporary” to
invoke a functional analogy between the Unamended Vacancy Clause’s
reference to the “next Meeting of the Legislature,” and the Seventeenth
Amendment Vacancy Clause’s reference to “the people fill[ing] the
vacancies by election as the legislature may direct.” That is, the term
“temporary” could carry over an implication that the election by the
people to fill the vacancy must take place at the popular-election
equivalent of the “next Meeting of the Legislature.” Plaintiffs argue that
the people are always in session. Thus, the State must hold the vacancy
election as quickly as it is able to hold an orderly special election. Other
functional interpretations are also possible, however, such as that the
people meet when they vote in elections. Thus, the State must hold the
vacancy election no later than the next election at which the people of
the state are voting, which is to say any statewide election, including a
special election or odd-year election. Or, the people meet in their federal
political capacity when they vote for congressional representatives.
Thus, the State must hold the vacancy election no later than the next
congressional election, which is to say the next even-year November
election.
28 TEDARDS V. DUCEY
gave the term “temporary” a precise temporal meaning
suggests to us that such meaning was not retained. We think
it more likely that the meaning retained by “temporary” was
simply that an appointment does not definitively resolve a
vacancy, but rather lasts only until the event that actually
“fill[s]” the vacancy.
Plaintiffs invite us to find further meaning in the
language of the Seventeenth Amendment Vacancy Clause
that duplicates language in the vacancy clause governing the
House of Representatives (the House Vacancy Clause). The
House Vacancy Clause states:
When vacancies happen in the
Representation from any State, the Executive
Authority thereof shall issue Writs of
Election to fill such Vacancies.
U.S. Const. art. I, § 2, cl. 4. The Seventeenth Amendment
materially replicates this language in the principal clause. 20
The House Vacancy Clause does not specify the amount
of time that may permissibly elapse between the happening
of a vacancy and the vacancy election. Given the two-year
term of a Representative, however, we can deduce that any
20
We provide a blackline for easy comparison:
When vacancies happen in the Representation from of
any State in the Senate, the Executive Authority
thereof of such State shall issue Writs of Election to
fill such Vacancies.: Provided . . .
See U.S. Const. amend. XVII para. 2; id. art. I, § 2, cl. 4 (additions in
underline, omissions in strikethrough) (capitalization differences
omitted).
TEDARDS V. DUCEY 29
vacancy election must occur within a timeframe shorter than
two years, and generally earlier than the next congressional
election. 21 We note the judgment implicit in this
requirement, that a special election is practicable on this
shorter timeframe, and that a special election is worthwhile
notwithstanding the limited duration of the remaining
vacancy. Accord Valenti, 292 F. Supp. at 878 (Frankel, J.,
dissenting).
However, we do not think the Seventeenth Amendment
Vacancy Clause should be interpreted as referencing the
precise time constraints that apply in the House context, for
two reasons. First, the effect of a House vacancy is different
from that of a Senate vacancy. When a vacancy occurs in
the House, the affected district has no representation in the
House until the State certifies a winner of the special
election. The House Vacancy Clause contains no provision
for an interim appointee. By contrast, when a vacancy
happens in the Senate, the affected state is normally still
represented by a second elected Senator, as well as
potentially by an interim appointee. The election of a
replacement Representative is thus in some sense more
urgent than the election of a replacement Senator. Accord
21
Plaintiffs’ reliance on Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir.
1970), and ACLU v. Taft, 385 F.3d 641 (6th Cir. 2004), for the
proposition that the House Vacancy Clause requires a special election as
soon as practicable is misplaced. Both of those cases were concerned
with whether the House Vacancy Clause mandates a special election at
all, even with little time left in the vacant term. See Jackson, 426 F.2d
at 1334; ACLU, 385 F.3d at 644. Both held that it does, so long as the
remaining time is not truly de minimis. See Jackson, 426 F.2d at 1337;
ACLU, 385 F.3d at 650. Both held further that the lame-duck session is
not de minimis. See Jackson, 426 F.2d at 1337; ACLU, 385 F.3d at 649
n.5. But neither pronounced a time constraint that would require a
special election earlier than the next general election.
30 TEDARDS V. DUCEY
ACLU, 385 F.3d at 649 n.3; Valenti, 292 F. Supp. at 862–63
(majority opinion). Conversely, however, the election of a
replacement Senator is uniquely urgent in the sense that the
Constitution prizes the equal representation of the States.
See U.S. Const. art. V (“[N]o state, without its consent, shall
be deprived of its equal suffrage in the Senate.”).
Second, as a practical matter, most States can likely
conduct a special election more easily for a single
congressional district than for an entire state. Most
congressional districts are smaller than their entire states in
terms of both geography and population. 22 Thus, House
special elections generally require fewer polling places,
fewer ballot materials, and a smaller elections staff. There
may also be a smaller field of candidates, and candidates
may be able to campaign more quickly. Accordingly, there
is reason to think the Seventeenth Amendment Vacancy
Clause may allow a longer interval before the people fill the
vacancy by election than does the House Vacancy Clause.
Accord Valenti, 292 F. Supp. at 862–63.
Finally, Plaintiffs argue that the final words of the
Seventeenth Amendment Vacancy Clause (“as the
22
Currently, seven states have only one congressional district:
Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and
Wyoming. U.S. Census Bureau, Apportionment Population and Number
of Representatives, by State: 2010 Census,
https://www.census.gov/population/apportionment/files/Apportionment
%20Population%202010.pdf. When the Seventeenth Amendment was
ratified, five states had only one congressional district: Arizona,
Delaware, Nevada, New Mexico, and Wyoming. Apportionment Act of
1911, Pub. L. No. 62-5, 37 Stat. 13 (1911). When the original
Constitution was ratified, two of the thirteen original states were
apportioned only one congressional district pending the first census:
Delaware and Rhode Island. U.S. Const. art. I, § 2, cl. 3.
TEDARDS V. DUCEY 31
legislature may direct”) are a cross-reference to the Elections
Clause, which states:
The Times, Places and Manner of holding
Elections for Senators and Representatives,
shall be prescribed in each State by the
Legislature thereof; but the Congress may at
any time by Law make or alter such
Regulations, except as to the Places of
chusing Senators.
U.S. Const. art. I, § 4, cl. 1. We need not resolve this
question, as we would disagree in any event with Plaintiffs’
argument that such a cross-reference independently imposes
a time constraint on the vacancy election. Cf. United States
v. Classic, 313 U.S. 299, 311 (1941) (“Pursuant to . . . [the
Elections Clause] . . . , the states are given, and in fact
exercise a wide discretion in the formulation of a system for
the choice by the people of representatives in Congress.”).
In sum, we do not find that related constitutional
provisions place any precise temporal limitations upon
vacancy elections or appointments under the Seventeenth
Amendment.
3. Historical Context
We next reflect upon the broader historical context and
the public spirit of the moment that motivated the drafting
and ratification of the Seventeenth Amendment. As drafted
in 1787, the original U.S. Constitution provided for two
chambers of the national legislature elected in two different
ways. While members of the House of Representatives were
to be elected “by the People,” U.S. Const. art. I, § 2, cl. 1,
Senators were to be “chosen by the [State] Legislature,” U.S.
Const. art. I, § 3, cl. 1. The Framers had at least two
32 TEDARDS V. DUCEY
motivations for designing the Senate in this way: (a) to
secure the role of state governments in the new federal
government, and (b) to balance the directly elected House
with a legislative chamber comprising a more “select
appointment.” The Federalist No. 62 (James Madison). 23
Congressional proposals to amend the Constitution in
favor of the direct election of Senators began within
Madison’s lifetime. See Clopton & Art, supra, at 1189 n.17
(collecting proposals as early as 1826). At least four
motivations drove the reformers: (1) curbing corrupt
practices in the choosing of Senators, such as bribery and
control by party bosses; 24 (2) freeing state legislatures from
the distraction and distorting effects of being responsible for
choosing national representatives; 25 (3) avoiding deadlocks
23
See also James Madison, Notes on the Debates in the Federal
Convention, June 6, 1787 (“Mr. SHERMAN: If it were in view to
abolish the State Govts. the elections ought to be by the people. If the
State Govts. are to be continued, it is necessary in order to preserve
harmony between the National & State Govts. that the elections to the
former shd. be made by the latter.”); George H. Haynes, The Election of
Senators 1–18 (1906) (canvassing the debates that took place at the 1787
Philadelphia convention regarding the composition of the Senate, noting
that the device of election by state legislatures was widely popular and
was the device by which the delegates had themselves been selected).
24
See, e.g., H.R. Rep. No. 55-125, at 3 (1898) (“The public press for
years . . . has been teeming with legislative scandals in the election of
Senators, until bribery and corruption are, we fear, in some localities,
fast becoming recognized as a part of the legislative function . . . .”)
(quoting H.R. Rep. No. 52-368, at 3 (1892)); Haynes, supra note 23, at
169–79; Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and
the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U. L. Rev. 500,
536–41 (1997).
25
See Haynes, supra note 23, at 180–95.
TEDARDS V. DUCEY 33
that left states unrepresented; 26 and (4) giving the people a
greater voice in their own government. 27 This last
motivation was primary. In the words of then-Professor,
now Judge Jay S. Bybee:
[W]hile corruption and legislative deadlock
might have demanded reform, neither
justified amending the Constitution. . . . In
the end analysis, . . . the real justification for
the Seventeenth Amendment was its populist
appeal, a need to “awaken[] in the Senators
. . . a more acute sense of responsibility to the
people.” The people simply wished to elect
senators themselves, without the mediation
of their state representatives. William
Jennings Bryan argued that “[i]f the people of
a State have enough intelligence to choose
their representatives in the State legislature
. . . , they have enough intelligence to choose
the men who shall represent them in the
United States Senate.” Whatever the reasons
for the original mode of selection, the voters
were “a new people living and acting under
an old system.” In the proponents’ view, the
Senate had been “a sort of aristocratic body—
too far removed from the people, beyond
their reach, and with no especial interest in
their welfare.” For populists and
26
See id. at 158–60, 195–96; Bybee, supra note 24, at 541–44.
27
See Haynes, supra note 23, at 131–32, 153–58, 166–69, 200–03;
Bybee, supra note 24, at 544–47.
34 TEDARDS V. DUCEY
progressives, election by the legislature was
an anachronism[.]
Bybee, supra note 24, at 544 (footnotes omitted) (first
quoting H.R. Rep. No. 50-1456, at 2 (1888); second quoting
26 Cong. Rec. 7775 (1893); third quoting 28 Cong. Rec.
1519 (1896) (statement of Sen. Turpie); fourth quoting S.
Rep. No. 54-530, at 10 (1896)).
By the first decade of the twentieth century, a majority
of state legislatures supported and had to some extent
already implemented the popular election of Senators. See
Richard Albert, The Progressive Era of Constitutional
Amendment, 2 Revista de Investigações Constitucionais 35,
46–48 (2015). Having received House approval numerous
times in various versions, the soon-to-be Seventeenth
Amendment finally received Senate approval in 1911. H.J.
Res. 39, 62d Cong., 47 Cong. Rec. 1879–1925 (1911). The
House accepted the Senate’s version in 1912, 37 Stat. 646
(1912), and three quarters of the States had ratified the
Amendment by mid-1913, 38 Stat. 2049 (1913).
Reading the Seventeenth Amendment Vacancy Clause
in the context of its primary historical purpose, we think that
the people are generally more empowered the more of a
Senate term they are permitted to fill by election.
Representation by a temporary appointee is some
representation, but it is indirect representation only, of
precisely the type the Seventeenth Amendment meant to
substantially replace. However, the people may also suffer
a loss of empowerment to the extent the vacancy election
occurs too close in time to when the vacancy happened, if a
too-quick schedule means the people are deprived of a
meaningful choice among candidates. But beyond the
amount of time that it takes to hold an orderly election, we
TEDARDS V. DUCEY 35
think that the popular purpose of the Seventeenth
Amendment counsels interpreting it to minimize the interval
preceding the vacancy election and likewise the duration of
appointed representation.
As to the secondary concerns that motivated reformers,
we note that corrupt practices are a heightened risk where
there is only one decisionmaker (e.g. the Governor) rather
than a large body of them (e.g. the State legislature). This
risk was illustrated recently by Governor Blagojevich’s
attempt to sell President-elect Obama’s vacant Senate seat.
See Judge I, 612 F.3d at 541; Monica Davey & Emma G.
Fitzsimmons, Ex-Governor Found Guilty of Corruption,
N.Y. Times, June 28, 2011, at A1. Thus, the shorter the
tenure of an appointee, the shorter may be the time that a
corruptly appointed Senator serves, and perhaps the less
attractive will be the appointment to corrupt actors. We
think the Seventeenth Amendment satisfies the
overburdened legislature and legislative deadlock concerns
regardless of the length of a temporary appointment.
Thus, our review of the historical context leads us to
disfavor any interpretation that permits excessively long
vacancies, but still does not reveal any precise constraints.
4. Congressional Understanding
Plaintiffs cite remarks by the Senator who proposed the
final version of the Seventeenth Amendment in the Senate,
and by the Representative who authored the Vacancy
Clause’s final text in the context of a previous version of the
Seventeenth Amendment introduced in the House, as
supporting their interpretation of the Amendment. We
disagree. We conclude that the cited reports are ambiguous
as to the relevant questions.
36 TEDARDS V. DUCEY
Senator Joseph L. Bristow 28 proposed the final version
of the Seventeenth Amendment in the Senate. In his remarks
on the Senate floor, he briefly explained the drafting of the
Vacancy Clause. Regarding the principal clause, he
emphasized that he had “use[d] exactly the same language in
directing the governor to call special elections for the
election of Senators to fill vacancies that is used in the
Constitution in directing him to issue writs of election to fill
vacancies in the House of Representatives.” 47 Cong. Rec.
1482–83 (1911). Regarding the proviso, he noted “[t]hat it
is practically the same provision which now exists in the case
of such a vacancy. . . . [T]he legislature may empower the
governor of the State to appoint a Senator to fill a vacancy
until the election occurs, and he is directed by this
amendment to ‘issue writs of election to fill such
vacancies.’” Id. These statements align with our
conclusions regarding the text and constitutional context
discussed above. They do not, however, illuminate whether
legislators understood the final language to require that the
necessary “special election” must “occur[]” by a particular
time. Id.
Representative Henry St. George Tucker III 29 authored
an 1892 proposed version of the Seventeenth Amendment,
28
Senator Bristow (R-Kan.) was a former newspaper editor who
devoted his political career to progressive reform, particularly with
respect to popular participation in government. See U.S. Senate, Joseph
L. Bristow: A Featured Biography, https://www.senate.gov/senators/
FeaturedBios/Featured_Bio_Bristow.htm.
29
Representative Tucker (D-Va.) was a constitutional law scholar
who would later serve as dean of the law schools of Washington and Lee
University and George Washington University. See Biographical
Directory of the U.S. Cong., Tucker, Henry St. George,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=T000399.
TEDARDS V. DUCEY 37
from which the final version of the Amendment borrowed
the language in the Vacancy Clause (omitting one comma).
Representative Tucker’s authorship received express
acknowledgement during the Senate debates on the final
version. 46 Cong. Rec. 2940 (1911). We therefore find
Representative Tucker’s explanation of his language to be
relevant here. In explaining his proposed language,
Representative Tucker justified the principal clause, under
which “the governor must order an election to fill the
vacancy,” as “preserv[ing] the principle of election by the
people.” H.R. Rep. No. 52-368, at 5 (1892) (emphasis
added). He justified the proviso as responding to the
predicament of those States that have “annual elections,”
where any vacancy would therefore “in most cases not be of
long duration, and to add another State election would be
imposing an unnecessary expense on the people.” Id.
(emphasis added). He went on to suggest that:
. . . in a State where there are biennial
elections the legislature might direct that if a
vacancy occurred within a year [or any other
period it might fix] after the election, the
vacancy should be filled by an election by the
people; but if the vacancy occurred more than
a year after the election the vacancy should
be filled by executive appointment.
Id. (brackets in original). In context, we read this
explanation to suggest that a state legislature would have
discretion to direct that any vacancy occurring within the
“period it might fix” be filled by prompt special election, but
that any vacancy occurring thereafter be filled at the next
general election, with a temporary appointee serving in the
interim.
38 TEDARDS V. DUCEY
We conclude that Representative Tucker’s report
evinces a strong assumption that States would fill most
Senate vacancies by popular election within one year of their
occurrence. However, we are less confident that
Representative Tucker’s report evinces any assumption that
the proposed Vacancy Clause would require observance of
this one-year limit. Rather, his report suggests that although
the principal clause would require a special election (even
sooner than one year) standing alone, the proviso defeats this
requirement by leaving some discretion to state legislatures.
The report does not anticipate the possibility that States with
biennial elections might direct that a prompt special election
is never required, postponing the people’s ability to fill the
vacancy until the next general election no matter how near
the previous election the vacancy arose. But neither does the
report offer an interpretation of the proviso that would
clearly prohibit this.
The legislative history thus does not provide us with a
clear view of the textual interpretation possessed by the
members of Congress who voted in favor of the Seventeenth
Amendment.
5. State Legislature Interpretations
Defendants draw our attention to the Senate vacancy
statutes enacted by most state legislatures shortly after the
Seventeenth Amendment’s ratification. Defendants argue
that these statutes demonstrate that the correct interpretation
of the Vacancy Clause is one that permits a vacancy election
at the next even-year election, or the second even-year
election if the vacancy happens within some months of the
first one. See Valenti, 292 F. Supp. at 858–59 (where there
is ambiguity or doubt, contemporaneous and subsequent
state practice is persuasive evidence of the best
constitutional construction) (citing McPherson v. Blacker,
TEDARDS V. DUCEY 39
146 U.S. 1 (1892); Smiley v. Holm, 285 U.S. 355 (1932)).
We agree that these statutes provide persuasive evidence in
favor of this conclusion. However, we note several caveats.
Forty States enacted Senate vacancy statutes between
1913 and 1915. See Valenti, 292 F. Supp. at 857 tbl.1, 871–
75 (App’x B). Nineteen States specifically required—
whether expressly by reference to biennial or congressional
elections, or implicitly by reference to the state’s general
elections—that vacancy elections take place at the next
even-year election. 30 Four States required that vacancy
elections take place at the next even-year election following
some additional time for nominations. 31 Four States
required that vacancy elections take place at the next annual
election. 32 Eight States required a special election within
less than one year of the start of the vacancy. 33 The
30
See Ariz. Rev. Stat. § 12-2870 (1913) (but authorizing Governor
to call special election if this would result in lapse of over six months);
1913 Cal. Stat. 237 (but requiring vacancy election during any statewide
special election if sooner); 1913 Fla. Laws 277; 1913 Ga. Laws 135;
1913 Ill. Laws 307; 1915 Ind. Acts 13; 1914 Ky. Acts 98; 1915 Mich.
Pub. Acts 261; 1913 Minn. Laws 756; 1915 Mont. Laws 281; 1915 Nev.
Stat. 83; 1915 N.H. Laws 32; 1915 Okla. Sess. Laws 57; 1915 S.D. Sess.
Laws 367; 1913 Tenn. Pub. Acts 396; 1915 Utah Laws 54; 1915 Vt. Acts
& Resolves 70; 1913 Wis. Sess. Laws 825 (but authorizing Governor to
call special election sooner); 1913 Wyo. Sess. Laws 100.
31
See 1915 N.M. Laws 39 (30 days); 1913 N.C. Sess. Laws 206 (30
days); 1914 Ohio Laws 8 (180 days); 1913 Pa. Laws 995 (60 days in
advance of the primary).
32
See 1913 Colo. Sess. Laws 267; 1914 Md. Laws 1337; 1913 N.Y.
Laws 2419 (plus 30 days); 1914 Va. Acts 252.
33
See 1915 Ala. Laws 364 (60 days, or 4 months if upcoming
general election); Del. Rev. Code § 1890 (1915) (one year); 1914 La.
Acts 471 (100 days); 1915 Me. Laws 35 (“forthwith”); 1914 Miss. Laws
40 TEDARDS V. DUCEY
remaining five States did not set a deadline but appear to
have left the timing of vacancy elections entirely or
primarily to the Governor’s discretion. 34
The number of state legislatures apparently interpreting
the Seventeenth Amendment to afford them discretion to
postpone a Senate vacancy election for up to two years or
slightly more is persuasive evidence that this interpretation
reflects the original public understanding. Even the statutes
providing for special elections within thirteen months or less
do not necessarily evince an interpretation that the state
legislature lacked discretion to postpone the election
longer. 35 Nor can we entirely dismiss the interpretations of
contemporary state legislatures as coming from the political
bodies that the Seventeenth Amendment had just divested of
power. The majority of state legislatures supported some
form of the Seventeenth Amendment, and many had already
implemented state-level reforms to create de facto direct
election of Senators. Albert, supra, at 46–48.
But we also do not find the state statutes conclusive as to
the proper interpretation of the Seventeenth Amendment
Vacancy Clause. The evidence we have examined in this
portion of our analysis tells us no more than that twenty-
192 (90 days, or calendar year of general election); 1914 R.I. Pub. Laws
65 (“as early . . . as will admit of compliance with . . . law”); 1914 S.C.
Acts 592 (90 days); 1913 Tex. Gen. Laws 101 (90 days).
34
See 1913 Conn. Pub. Acts 1839; 1913 Mass. Acts 1059; 1915 Mo.
Laws 280; 1915 Or. Laws 59; 1915 Wash. Sess. Laws 232 (not less than
25 days from issuance of writ).
35
Indeed, many States that originally provided for prompt special
elections later amended their statutes to postpone vacancy elections until
the next even-year election. See Valenti, 292 F. Supp. at 857 tbl.1, 871–
75 (App’x B).
TEDARDS V. DUCEY 41
three state legislatures enacted statutes in the wake of the
Seventeenth Amendment’s ratification that postponed a
vacancy election to the next (or next practicable) even-year
election. We do not know the extent to which that choice
represented the state legislatures’ debate or deliberation, as
opposed to uncontested assumption, regarding the meaning
of the Seventeenth Amendment. We do not know how state
or federal courts might have interpreted the Seventeenth
Amendment if those statutes had occasioned contemporary
challenges. 36 Cf. U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 823 (1995) (“One may properly question the extent
to which the States’ own practice is a reliable indicator of the
contours of restrictions that the Constitution imposed on
States, especially when no court has ever upheld [the
challenged state practice].”). And we do not know whether
the state legislatures that enacted speedier special election
laws may have specifically interpreted the Seventeenth
Amendment to so require. We do note that we have no
example within contemporary state practice—or any
subsequent state practice—of a State attempting to extend a
vacancy or interim appointment by significantly more than
the two-year gap between even-year elections.
In sum, postratification state statutes favor, but do not
compel, an interpretation of the Seventeenth Amendment
Vacancy Clause that leaves States broad discretion to
schedule a vacancy election up until the next general election
preceded by some reasonable period of time in which to hold
the election.
36
We do know that many state courts had interpreted similar
vacancy provisions in their own state constitutions to require prompt
special elections. See Valenti, 292 F. Supp. at 883 (Frankel, J.,
dissenting) (collecting cases).
42 TEDARDS V. DUCEY
6. Precedent
We now turn to the four prior cases that have interpreted
the Seventeenth Amendment Vacancy Clause at any length.
We begin with Valenti and Rodriguez, and proceed to two
related decisions decided by our sister circuits in the interim.
i. Valenti v. Rockefeller
On June 5, 1968, U.S. Senator and presidential candidate
Robert F. Kennedy was fatally shot in the kitchen of the
Ambassador Hotel in Los Angeles. Pursuant to then-
applicable New York law, the vacancy created by Senator
Kennedy’s assassination occurred too close to that year’s
Senate primaries to let the people of New York fill the
vacancy by election in November 1968. 292 F. Supp. at 853.
Instead, the law permitted the vacant seat to go unfilled by
popular election until November 1970—an interval of 29
months. See id. Multiple plaintiffs challenged New York’s
Senate vacancy statute and moved for an injunction ordering
New York to hold a vacancy election in November 1968—
i.e., five months from when the vacancy occurred. Id. In
Valenti, a divided three-judge district court 37 dismissed the
complaints. Id.
37
At the time of Valenti, Congress required that any case seeking an
injunction against a state officer to prevent enforcement of an allegedly
unconstitutional state statute be heard by a special three-judge district
court. 28 U.S.C. § 2281 (1964) (repealed 1976). One member of the
specially constituted court had to be a circuit judge. Id. § 2284(1). The
decision of the three-judge court was directly appealable to the Supreme
Court. Id. § 1253. See generally 17A Charles Alan Wright, Arthur R.
Miller & Vikram David Amar, Federal Practice and Procedure § 4234
(3d ed., Aug. 2019 update) (tracing history of the three-judge district
court from Congress’s reaction to Ex Parte Young, 209 U.S. 123 (1908),
TEDARDS V. DUCEY 43
All three judges on the panel agreed that the final words
of the proviso (“as the legislature may direct”) grants “some
reasonable degree of discretion” to state legislatures to
determine the timing of a Senate vacancy election. Id. at
856; id. at 884 (Frankel, J., dissenting). They also all agreed
that the word “temporary” could not “faithfully be read to
allow appointments for anything approaching the full six
years in the case of a vacancy occurring early in the term.”
Id. at 881. They nevertheless disagreed regarding the outer
boundaries of the State’s discretion, as well as regarding
what evidence is relevant to answer that question.
Writing for the majority, Second Circuit Chief Judge
Lumbard 38 divided the relevant inquiry into two parts: (1)
whether the Seventeenth Amendment permitted New York
to skip the upcoming election—i.e., November 1968—and
(2) whether the Seventeenth Amendment permitted New
York to skip the next odd-year election—i.e., November
1969. See id. at 855 (majority opinion). He answered both
questions in the affirmative. As to the first, he emphasized
the State’s interest in holding primary elections, which he
implied outweighed the people’s interest in a prompt special
election. Id.; see also id. at 861–62 (emphasizing the virtues
of primary elections). As to the second, he focused on the
probative value of state statutes enacted shortly after the
Seventeenth Amendment’s ratification, as we discussed
above. Id. at 856–59. He also posited three “substantial state
interests” as justifying a generous interpretation of the
discretion the Amendment grants to state legislatures:
to the Supreme Court’s frustration with the practice peaking in the late
1960s and early 1970s, to the “virtual abolition” of the practice in 1976).
38
Chief Judge Lumbard was joined by Chief District Judge
Henderson of the Western District of New York.
44 TEDARDS V. DUCEY
(a) capitalizing on maximum voter interest and turnout
during even-year elections; (b) making it easier for Senate
candidates to finance their campaigns; and (c) avoiding the
inconvenience and expense associated with Senate elections
in back-to-back years. Id. at 859–60. 39
39
Dissenting, Judge Frankel of the Southern District of New York
criticized the majority for its “almost total disregard” of the Seventeenth
Amendment’s primary mandate that Senators be “elected by the people.”
Id. at 875–76 (Frankel, J., dissenting). He would have held that the
Amendment contains a “powerful presumption” than an appointment
ought last no longer than one year, and that “the most impressive kind of
justification” is necessary to exceed it. Id. at 889 (adding that the
appointment at issue, substantially exceeding two years, was “patently
excessive”). In support of this conclusion he drew on textual comparison
to and historical practice under the Unamended Vacancy Clause. See id.
at 876–77. He also drew on textual comparison to the House Vacancy
Clause, legislative history, and numerous state court interpretations of
similar legislative vacancy provisions in those states’ own constitutions.
See id. at 877–84.
Judge Frankel objected to the majority’s reliance on state practice,
citing several then-recent Supreme Court decisions that invalidated state
statutes under newly announced constitutional interpretations despite
clearly contrary state interpretations at the time of ratification. Id. at 887
(citing Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S.
533 (1964); Brown v. Board of Education, 347 U.S. 483 (1954)).
Judge Frankel further argued that it was perverse to have a
“substantial state interest” in increased voter turnout lead to an
interpretation that did not allow anyone to vote for over two years. Id.
He criticized the majority’s arguments about the “expense” of a special
election, noting, for instance, that such expense could hardly be
prohibitive. Id. at 888. He argued that Representative Tucker’s report
interpreted the operative language to justify delay for expense reasons if
and only if the vacancy election would otherwise take place within the
same year as an already scheduled general election. Id. (citing H.R. Rep.
No. 52-368, at 5 (1892)).
TEDARDS V. DUCEY 45
On direct appeal, the Supreme Court summarily affirmed
the Valenti majority. 393 U.S. 405 (1969) (per curiam).
Accordingly, Valenti binds us as to the result, although not
the reasoning, of the district court decision. In Anderson v.
Celebrezze, 460 U.S. 780 (1983), the Supreme Court
explained:
We have often recognized that the
precedential effect of a summary affirmance
extends no further than ‘the precise issues
presented and necessarily decided by those
actions.’ A summary disposition affirms
only the judgment of the court below, and no
more may be read into our action than was
essential to sustain the judgment.
Id. at 784 n.5 (citation omitted) (quoting Ill. Elections Bd. v.
Socialist Workers Party, 440 U.S. 173, 182–83 (1979)); see
also id. at 784–85 (“Then, correctly recognizing the limited
precedential effect to be accorded summary dispositions, the
Court of Appeals independently reached the same
conclusion.”) (footnote omitted); Washington v.
Confederated Bands and Tribes of the Yakima Indian
Nation, 439 U.S. 463, 476 n.20 (1979) (“It is not at all
unusual for the Court to find it appropriate to give full
consideration to a question that has been the subject of
previous summary action.”).
The parties dispute the nature of “the precise issues” that
were “necessarily decided” by the Court’s summary
affirmance in Valenti. Anderson, 460 U.S. at 784 n.5
(quoting Ill. Elections Bd., 440 U.S. at 182–83). Plaintiffs
would have us limit the precedential effect of Valenti to the
denial of the injunction sought by the Valenti plaintiffs, i.e.,
the five-month timetable. Defendants would have us read
46 TEDARDS V. DUCEY
the affirmance broadly as authorizing the delay of a popular
election until November 1970, i.e., the full 29-month
interval. Our resolution of this dispute turns on our
interpretation of Rodriguez.
ii. Rodriguez v. Popular Democratic Party
In 1981, Puerto Rico House of Representatives member
Ramón Muñiz (Popular Democratic Party) died and left
vacant his seat in the commonwealth legislature. 457 U.S.
at 3. At the time, Puerto Rico law allowed the vacating
legislator’s political party to fill the vacancy by appointment
for the remainder of the term, in this case nearly the full four-
year term. See id. at 3–5 & n.2 (citing P.R. Laws Ann., Tit.
16, §§ 3206, 3207 (Supp. 1980)). The Governor of Puerto
Rico, a member of the opposition New Progressive Party,
instead called a special election open to all qualified voters.
Id. at 3. In the lawsuit that ensued, the U.S. Supreme Court
was called upon to decide whether the Puerto Rico vacancy
law violated the U.S. Constitution. Id. It unanimously held
that it did not. Id.
The Court interpreted the question before it as whether,
given that Puerto Rico allows its people to elect legislators
by popular vote at each general election, the U.S.
Constitution prevents it from filling vacancies during the
interim periods only by appointment. 40 It rejected
arguments that either the Qualifications Clause, U.S. Const.
art. I, § 2, cl. 1 (referencing the “Electors of the most
numerous Branch of the State Legislature”), the Guarantee
40
The Court separately addressed the question of whether that
appointment could be delegated to a political party. See id. at 12–14. It
affirmed the finding of the Supreme Court of Puerto Rico that this “was
a legitimate mechanism serving to protect the mandate of the preceding
election.” Id. at 13.
 TEDARDS V. DUCEY 47
Clause, U.S. Const. art. IV, § 4 (guaranteeing “to every State
in this Union a Republican Form of Government”), or the
Fifth or Fourteenth Amendment equal protection guarantees
so prohibit. See id. at 8–10 & n.8.
Instead, the Court found support for Puerto Rico’s
appointment procedure by analogizing to the Seventeenth
Amendment. See id. at 10–12. The Court observed that in
Valenti it had “sustained the authority of the Governor of
New York to fill a vacancy in the United States Senate by
appointment pending the next regularly scheduled
congressional election—in that case, a period of over 29
months.” 41 Id. at 10–11 (citing 393 U.S. 405). The Court
then reasoned that:
. . . the fact that the Seventeenth Amendment
permits a state, if it chooses, to forgo a special
election in favor of a temporary appointment
to the United States Senate suggests that
[neither] a state [nor Puerto Rico] is . . .
constitutionally prohibited from exercising
similar latitude with regard to vacancies in its
own legislature.
41
We acknowledge that both sides’ briefing in Rodriguez simply
assumed that the Court’s summary affirmance of Valenti had endorsed
the full 29-month delay of a vacancy-filling election. See Brief for
Appellants at 22 n.14, 457 U.S. 1 (1982) (No. 81-328); Brief for
Appellees at 23–25, 457 U.S. 1 (1982) (No. 81-328); Reply Brief for
Appellants at 6–7, 11, 457 U.S. 1 (1982) (No. 81-328). Rather than
challenging this interpretation, the appellants tried to distinguish Valenti
as upholding an appointment lasting “less than half” the term, in contrast
to nearly the entire term as in the case at hand. Brief for Appellants,
supra, at 22 n.14.
48 TEDARDS V. DUCEY
Id. at 11. The Court also quoted with approval the Valenti
district court’s assessment that the case involved “no
fundamental imperfection in the functioning of democracy,”
but “only the unusual, temporary, and unfortunate
combination of a tragic event and a reasonable statutory
scheme.” Id. at 11 (quoting 292 F. Supp. at 867).
The parties dispute whether Rodriguez’s discussion of
Valenti was dicta or holding, given that the Seventeenth
Amendment does not apply to Puerto Rico and the vacancy
at issue was not in the U.S. Senate. Even if it is mere dicta,
however, we do not believe we are free to ignore it. See Zal
v. Steppe, 968 F.2d 924, 935 (9th Cir. 1992), as amended
(July 31, 1992) (Noonan, J., concurring in the result in part
and dissenting in part) (“[D]icta of the Supreme Court have
a weight that is greater than ordinary judicial dicta as
prophecy of what that Court might hold. We should not
blandly shrug them off because they were not a holding.”).
Moreover, we think that Rodriguez’s discussion of Valenti
has even greater weight, because we cannot say with
certainty that the Court would have reached the same
conclusion regarding Puerto Rico’s appointment scheme
without the analogy to Valenti’s approval of a 29-month
Senate appointment. Furthermore, an interpretation of the
Seventeenth Amendment Vacancy Clause that grants States
as much as 29 months in which to schedule a vacancy
election at their discretion is not unreasonable in light of our
foregoing analysis. We therefore conclude that we are
bound by Rodriguez’s 29-month interpretation of the
binding result of Valenti. 42
42
Plaintiffs argue that U.S. Term Limits and Cook v. Gralike, 531
U.S. 510 (2001) herald an intervening doctrinal shift that more narrowly
circumscribes state discretion. In U.S. Term Limits, the Court prohibited
TEDARDS V. DUCEY 49
iii. Trinsey v. Pennsylvania
On April 4, 1991, Pennsylvania Senator H. John Heinz
III’s privately chartered plane collided with a helicopter in
midair. The aircraft crashed into the yard of an elementary
school, killing Senator Heinz along with the pilots and two
first-grade girls who had been at recess. 43 Then-operative
Pennsylvania law required a vacancy election at the next
general or municipal election occurring at least 90 days after
the happening of the vacancy, which meant November 1981.
941 F.2d at 225. In contrast to Pennsylvania’s approach to
general elections, the law did not provide for primaries
before the vacancy election, but instead allowed the major
political parties to nominate candidates in accordance with
their own party rules. Id. at 225–27. A Philadelphia
the State of Arkansas from denying ballot access to congressional
candidates who had served a certain number of terms in Congress. 514
U.S. at 783. The Court concluded that the Constitution prohibits States
from imposing congressional qualifications additional to those therein
enumerated, emphasizing that to allow otherwise would violate the
“fundamental principle of our representative democracy . . . ‘that the
people should choose whom they please to govern them.’” Id. at 783,
793, 795, 819 (quoting Powell v. McCormack, 395 U.S. 486, 547
(1969)). In Cook, the Court prohibited the State of Missouri from
attempting to circumvent U.S. Term Limits—under the guise of the
State’s authority to regulate the “Manner of holding Elections,” U.S.
Const. art. I, § 4, cl. 1—by printing adverse labels next to the names of
congressional candidates who had not pledged or taken action to support
a term limits amendment to the U.S. Constitution. 531 U.S. at 522–26.
Even assuming these cases represent a doctrinal shift relevant to our
decision today, it would be the Supreme Court’s prerogative, not ours, to
resolve potentially conflicting lines of its own doctrine. Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); In re
Twelve Grand Jury Subpoenas, 908 F.3d 525, 529 (9th Cir. 2018).
43
Don Phillips & Michael Specter, Sen. Heinz Dies in Plane Crash,
Wash. Post, Apr. 5, 1991, at A1.
50 TEDARDS V. DUCEY
developer and would-be Republican Senate candidate sued
pro se after reading the Seventeenth Amendment in his home
encyclopedia, arguing that nominations must be made “by
the people.” 44 Id. at 226–27. On appeal of the district court
judgment for the developer, the Third Circuit reversed. Id.
at 236. The Supreme Court denied certiorari. 502 U.S. 1014
(1991).
The Third Circuit began by canvassing the Seventeenth
Amendment’s legislative history for discussion of primary
elections. See 941 F.2d at 228–31. It concluded that
Congress had deliberately omitted to require a particular
process for nominating Senate candidates for general
elections, but that the record revealed little consideration of
the issue with regard to vacancy elections. Id. at 230–31.
Although presented with the “converse” of the situation
here—essentially, the claim that the State was holding the
vacancy election too soon—the court then relied heavily on
Valenti and Rodriguez for the proposition that the
Seventeenth Amendment confers “a reasonable discretion
upon the states concerning the timing and manner of
conducting vacancy elections.” Id. at 233 (quoting Valenti,
292 F. Supp. at 866). 45 Having found nothing in legislative
44
See David Treadwell, Senate Hopeful’s Suit Puts Pennsylvania in
Turmoil: Novice says the people, not the parties, must choose
candidates, L.A. Times (June 20, 1991), https://
www.latimes.com/archives/la-xpm-1991-06-20-mn-1437-story.html.
The Third Circuit appointed Professor Laura E. Little of Temple
University School of Law as amicus curiae to “fully and forcefully”
present the position adverse to that of the State. Trinsey, 941 F.2d at 227.
45
The Third Circuit distinguished two Supreme Court cases
specifically regarding primary elections, holding that those cases
governed only citizens’ rights respecting a primary election that the state
has chosen to hold, and did not establish a right to have the state hold a
TEDARDS V. DUCEY 51
history or caselaw to support a constitutional requirement
that States hold primaries before vacancy elections, the
Third Circuit concluded that no fundamental right was
infringed by the Pennsylvania statute. Id. at 234. It therefore
rejected the district court’s application of strict scrutiny, and
concluded that Rodriguez counsels toward “a more
deferential standard of review.” Id. Trinsey is generally
consistent with our foregoing analysis.
iv. Judge v. Quinn
On November 4, 2008, then-Senator Barack Obama was
elected President of the United States. He resigned his
Senate seat twelve days later, with nearly two years and two
months remaining in the term. 612 F.3d at 541. Illinois law
provided that a Senate vacancy be filled at the next
congressional election (i.e., November 2010), with the
Governor making a temporary appointment in the interim.
Id. Governor Rod Blagojevich appointed former State
Attorney General Roland Burris to serve as Senator until the
vacancy was “filled by election as provided by law,” but did
not issue a writ of election. Id. Shortly thereafter, Governor
Blagojevich, whose private phone calls the FBI had all the
while been recording, was impeached, removed from office,
criminally indicted, and eventually convicted on charges
including attempting to “obtain personal financial benefits
. . . in return for his appointment of a United States Senator.”
Superseding Indictment at 16, United States v. Blagojevich,
No. 08 CR 888-1 (N.D. Ill. Apr. 2, 2009); see Judge I, 612
F.3d at 541; Davey & Fitzsimmons, supra, at A1.
primary election. See id. at 231–32 (discussing United States v. Classic,
313 U.S. 299 (1941), and Tashjian v. Republican Party of Conn., 479
U.S. 208 (1986)).
52 TEDARDS V. DUCEY
Two registered voters sued the successor Governor for
an alleged violation of their Seventeenth Amendment rights.
Judge I, 612 F.3d at 541. As ultimately presented to the
Seventh Circuit, the plaintiffs challenged the Governor’s
failure to issue a writ of election fixing any date for the
people to fill the vacancy. Id. at 543. Without such a writ,
the November 2010 election would fill only the subsequent
Senate term beginning in 2011. With a writ, the November
2010 election could also fill the remaining few weeks (i.e.,
the “lame-duck” session) of the Obama term.
In Judge I, the Seventh Circuit concluded that the
Seventeenth Amendment makes mandatory the Governor’s
duty to issue a writ of election. Id. at 555. In Judge II, the
Seventh Circuit clarified that the district court had authority
to issue an injunction requiring the Governor to do just that,
regardless of Illinois statutory law. 387 F. App’x at 630.
The Supreme Court denied certiorari. 563 U.S. 1032 (2011).
In Judge III, the Seventh Circuit upheld the district court’s
injunction ordering the Governor to call a special election on
election day in November 2010, and to name as candidates
to fill the lame-duck session of the Obama vacancy the same
candidates running for the subsequent Senate term. 624 F.3d
352, 354, 356, 362 (7th Cir. 2010). The Supreme Court
again denied certiorari. Burris v. Judge, 563 U.S. 1041
(2011).
Although Rodriguez had interpreted Valenti to authorize
a State “to forgo a special election in favor of a temporary
appointment,” 457 U.S. at 11, the Seventh Circuit concluded
that Valenti did not provide “firm guidance” for its analysis.
Judge I, 612 F.3d at 548–49. Assuming without deciding
that the Valenti summary affirmance endorsed the full 29-
month lapse in elected representation, the Seventh Circuit
concluded that Valenti nevertheless “had nothing to say
TEDARDS V. DUCEY 53
about” and “could not have decided” the question whether
the Seventeenth Amendment mandates the issuance of a writ
of election. Id. at 549 (noting that the Governor of New
York had already issued a writ of election for November
1970). We agree with the Seventh Circuit on this point, and
conclude that the “forgo a special election” language in
Rodriguez is fairly read to refer to elections falling outside
the general election cycle, rather than to vacancy elections
altogether. We add that neither Valenti nor Rodriguez
articulate any rationale for concluding that temporary
appointments are an alternative to ever holding a vacancy
election, or that state discretion to “direct” a vacancy
election encompasses discretion to “forgo” a vacancy
election. We therefore interpret Rodriguez to endorse only
a State’s discretion to postpone a vacancy election until a
general election.
B. Application to A.R.S. § 16-222
We turn at last to the challenged law. Under the schedule
set by A.R.S. § 16-222(D) and Governor Ducey’s writ of
election consistent therewith, Arizona’s lapse between the
occurrence of the vacancy and the vacancy election exceeds
the full two-year interval between congressional election
voting days by about two and a half months. 46 In Valenti,
New York’s lapse exceeded the same interval by about five
months. Because Arizona’s additional lapse does not exceed
the additional lapse endorsed by Valenti and Rodriguez, we
hold that the timing provision of A.R.S. § 16-222(D) as
applied to the McCain vacancy is a permissible exercise of
46
Although A.R.S. § 16-222(D) provides for as much as seven
months of additional time, no such vacancy election schedule is before
us. We therefore need not fully resolve the outer boundaries of the
Seventeenth Amendment’s permissible schedule.
54 TEDARDS V. DUCEY
the State’s discretion under the Seventeenth Amendment.
Likewise, then, neither Governor Ducey’s writ of election
nor Senator McSally’s appointment is a violation thereof.
We therefore affirm the district court’s dismissal of
Counts I and II of Plaintiffs’ amended complaint to the
extent that those counts relate to the timing of the vacancy
election and the duration of appointed representation under
the Seventeenth Amendment.
II. First and Fourteenth Amendment Burdick Challenge
to Vacancy Election Date
Plaintiffs raise their right to vote under the First and
Fourteenth Amendments, as interpreted by Burdick v.
Takushi, 504 U.S. 428 (1992), as an independent reason to
find A.R.S. § 16-222 unconstitutional as applied to the
November 2020 vacancy election date. Burdick prescribes a
sliding-scale level of scrutiny for evaluating governmental
actions that burden the right to vote. Id. at 434. At one end
of the spectrum, “severe” restrictions must be “narrowly
drawn to advance a state interest of compelling importance.”
Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). At
the other end of the spectrum, “important [state] regulatory
interests are generally sufficient” to justify “reasonable,
nondiscriminatory restrictions.” Id. (quoting Anderson, 460
U.S. at 788). Thus, the burdening of the right to vote always
triggers a higher level of scrutiny than rational basis review,
but does not always trigger strict scrutiny.
The parties dispute the severity of the burden at issue
here. Plaintiffs argue that a 27-month election “delay” is
plainly a “severe” restriction on the right to vote.
Defendants argue that the delay of a vacancy election until
the next general election is not a burden at all. We assume,
without deciding, that regulation of the timing of a vacancy
TEDARDS V. DUCEY 55
election is at least a “burden” for purposes of Burdick
review. However, because we hold above that the
Seventeenth Amendment authorizes at least as long of an
interval before the vacancy election as is challenged here, we
conclude that the burden thereby posed is necessarily a
“reasonable” one.
“[R]easonable” restrictions on the right to vote may be
justified by “important” state interests. Burdick, 504 U.S. at
434 (quoting Anderson, 460 U.S. at 788). Defendants assert
three state interests. First, they note the cost of holding an
election that takes place independently of the biennial
general election. Plaintiffs counter that the cost is relatively
small, but we have previously found similar interests
“important” in other Burdick cases. E.g., Dudum v. Arntz,
640 F.3d 1098, 1116 (9th Cir. 2011); Ariz. Libertarian Party
v. Reagan, 798 F.3d 723, 733 (9th Cir. 2015).
Second, Defendants argue that Arizona has an important
interest in maximizing voter turnout, and provides evidence
that voter turnout in recent Arizona elections was highest at
biennial general elections. Plaintiffs counter that
Defendants’ evidence is inapposite because a special
election for a Senator could have a much higher turnout than
the special elections Defendants reference. Plaintiffs further
argue that Defendants offer no basis for what increase in
turnout qualifies as important, and that the indifference of
some voters should not preclude others from voting. Despite
these limitations, we agree that Arizona’s interest in voter
turnout is important.
Third, Defendants point to the possibility of voter
confusion engendered by multiple elections. In 2020,
Arizonans are scheduled to vote in a March presidential
primary, an August primary, and the November general
election. We agree that Arizona’s interest in minimizing
56 TEDARDS V. DUCEY
voter confusion is important and relevant in this context. We
reject Plaintiffs’ argument that Soltysik v. Padilla, 910 F.3d
438 (9th Cir. 2018), precludes the voter confusion rationale.
See id. at 448–49 (holding that a speculative concern of voter
confusion was insufficient, but also that elaborate empirical
verification was unnecessary where the burden of a
restriction is minimal). In Soltysik we were considering the
potential voter confusion engendered by candidate party
affiliations on the ballot, a matter we found highly
speculative. In this case, the potential for voter confusion on
account of multiple elections is not purely speculative but
has been validated by other cases. See, e.g., Lynch v. Ill.
State Bd. of Elections, 682 F.2d 93, 97 (7th Cir. 1982); Vera
v. Bush, 933 F. Supp. 1341, 1348 (S.D. Tex. 1996) (three-
judge court).
Relying on Soltysik more generally, Plaintiffs argue that
all of Defendants’ arguments fail at the motion to dismiss
stage because an evidentiary hearing is necessary to apply
something more than rational basis review. See 910 F.3d at
446–48. We disagree. This case is distinguishable from
Soltysik because, compared to the burden at issue here, the
burden in Soltysik fell higher on the Burdick sliding scale
between “reasonable, nondiscriminatory” and “severe.” Id.
at 445–46. In Soltysik, we considered a challenge to a
California law requiring candidates from all but six
“qualified” parties to state a party preference of “None” on
the ballot. Id. at 445. The law therefore required a false
statement regarding political views and clearly
discriminated against candidates from new and small parties.
Id. at 445–46. Under these circumstances, we held that
further development of the evidentiary record was necessary
to determine whether there were “more precise ways” to
address the State’s alleged interest in preventing voter
confusion. Id. at 447.
 TEDARDS V. DUCEY 57
We have already explained our conclusion that the
burden posed by the timing of the vacancy election here is
necessarily reasonable. To the extent that A.R.S. § 16-
222(D)’s timing provision discriminates (against candidates
other than the appointee, or parties other than that of the
appointee, or voters who disfavor the appointee)—based on
it providing the appointee ample time to gain the advantages
of running as an incumbent—this discrimination is hardly
distinguishable from that which occurs when a candidate
wins an election by the people. Cf. Rodriguez, 457 U.S. at
12 (finding that the Puerto Rico vacancy statute’s effect
“d[id] not fall disproportionately on any discrete group of
voters, candidates, or political parties”). Thus, a higher level
of scrutiny applied to the discriminatory regulation in
Soltysik than applies here, and justified holding an
evidentiary hearing to properly scrutinize the burden.
Plaintiffs have failed to plausibly allege that the timing
of the vacancy election here is not justified by “important”
state interests. Burdick, 504 U.S. at 434; cf. Rodriguez, 457
U.S. at 12 (finding that the Puerto Rico vacancy statute
“plainly serve[d] the legitimate purpose of ensuring that
vacancies are filled promptly, without the necessity of the
expense and inconvenience of a special election”). Given
that the burden of this timing on Plaintiffs’ right to vote is
“reasonable” and “nondiscriminatory,” the “important” state
interests raised above are sufficient to affirm the dismissal
of Plaintiffs’ First and Fourteenth Amendment challenges.
Id.
We therefore affirm the district court’s dismissal of
Count I in its entirety.
58 TEDARDS V. DUCEY
III. Constitutional Challenges to Appointment
Mandate and Same-Party Restriction
Apart from the timing required by A.R.S. § 16-222(D),
Plaintiffs challenge the law in two additional respects. They
challenge the law’s mandate that “the governor shall appoint
a person to fill the vacancy,” id. § 16-222(C) (emphasis
added), as a violation of the Seventeenth Amendment’s
instruction that a state legislature “may empower” the
Governor to make temporary appointments, U.S. Const.
amend. XVII (emphasis added). They also challenge the
law’s further mandate that the “appointee shall be of the
same political party as the person vacating the office,”
A.R.S. § 16-222(C), as a violation of the Qualifications
Clauses as interpreted by U.S. Term Limits, 514 U.S. at 787–
827. Defendants argue that the first challenge fails on the
merits, and that the second fails for lack of standing. The
district court agreed. We conclude, however, that Plaintiffs
lack standing to raise either challenge.
The jurisdiction of Article III courts is limited to “Cases”
and “Controversies.” U.S. Const. art. III, § 2; see Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1546–47 (2016). In order to
establish that they have the “irreducible constitutional
minimum” of standing to bring a case or controversy,
Plaintiffs have the burden of demonstrating that they have
“(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” Id. at 1547
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). We focus here on the second factor.
Plaintiffs invoke numerous theories to describe the
injuries they allegedly suffer on account of § 16-222(C)’s
mandate that the Governor make a temporary appointment
and choose a member of the same political party as the
TEDARDS V. DUCEY 59
Senator who created the vacancy. See, e.g., United States v.
Hays, 515 U.S. 737, 742–45 (1995) (representational harm);
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n.14
(1978) (loss of opportunity to compete); Ariz. Free
Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S.
721, 750 (2011) (imposition of state viewpoint); Daniels v.
Williams, 474 U.S. 327, 339 (1986) (Stevens, J., concurring
in the judgment) (fundamentally flawed procedure). Even
assuming Plaintiffs have suffered an injury in one or more of
these respects, we fail to see how such an injury is traceable
to A.R.S. § 16-222(C).
Given that Arizona’s legislature “empower[ed]” the state
governor to make “temporary” appointments, U.S. Const.
amend. XVII, Governor Ducey unquestionably had the
authority to appoint Martha McSally as a temporary
replacement for Senator McCain. Plaintiffs allege no facts
rebutting Governor Ducey’s statement on appeal that he
“would have appointed Senator McSally regardless of the
requirement that he name an interim senator and regardless
of the requirement that the appointee share Senator
McCain’s political party.” Accordingly, Plaintiffs have
suffered no injuries from the appointment of Senator
McSally that are fairly traceable to § 16-222(C), and have
suffered no injury attributable to the mere existence of § 16-
222(C) since it has not affected them. This lack of
traceability is fatal to standing. Thus, we need not resolve
whether the district court could redress Plaintiffs’ alleged
injuries in the counterfactual where they were traceable to
§ 16-222(C).
Accordingly, we affirm the district court’s dismissal of
Count II of Plaintiffs’ amended complaint as it relates to the
appointment mandate, and of Count III in its entirety, for
lack of standing.
60 TEDARDS V. DUCEY
CONCLUSION
We interpret the Seventeenth Amendment, in light of
Valenti and Rodriguez, to confer at least as much temporal
discretion upon the States as was exercised by Arizona in
A.R.S. § 16-222 as applied to the vacancy created by Senator
McCain’s death. Given this authorization by the
Seventeenth Amendment, we further conclude that the
vacancy election timing challenged here does not
impermissibly burden the right to vote under the First and
Fourteenth Amendments. We lack jurisdiction to consider
Plaintiffs’ additional challenges.
AFFIRMED.
COLLINS, Circuit Judge, concurring in part and concurring
in the judgment:
I agree with the majority that the district court properly
dismissed Plaintiffs’ various constitutional challenges to the
Arizona statute governing the filling of senatorial vacancies,
but in my view the issues raised in this case can be readily
resolved under existing precedent. I therefore do not join the
lengthy excursus on the meaning of the Seventeenth
Amendment in section I(A) of the “Analysis” section of the
majority’s opinion, which seems to me unnecessary to our
decision in this case. Instead, I join only Parts I(B), II, and
III of the “Analysis” section, and I concur in the judgment.
I
The Seventeenth Amendment expressly authorizes the
legislature of a state to “empower the executive,” in the
event of a vacancy in that State’s representation in the United
TEDARDS V. DUCEY 61
States Senate, “to make temporary appointments until the
people fill the vacancies by election as the legislature may
direct.” U.S. Const. amend. XVII, para. 2. Arizona’s
legislature has authorized the state Governor to make such
temporary appointments, see Ariz. Rev. Stat. § 16-222(C),
and after the vacancy created by the death of Senator John
McCain, the Governor (Defendant Doug Ducey) exercised
that authority by first appointing Jon Kyl and then, after
Kyl’s resignation, by appointing Defendant Martha
McSally. Under the plain terms of the amendment, McSally
therefore may continue to serve temporarily “until the
people” of Arizona “fill the vacanc[y] by election as the
legislature may direct.” U.S. Const. amend. XVII, para. 2
(emphasis added). On its face, the italicized phrase
unquestionably grants the Arizona legislature “some
reasonable degree of discretion” in setting the date of the
election that will fill this Senate vacancy and thereby
terminate McSally’s current “temporary appointment[].”
Valenti v. Rockefeller, 292 F. Supp. 851, 856 (W.D.N.Y.
1968) (three-judge district court) (emphasis added),
summarily aff’d, 393 U.S. 405 (1969); see also 292 F. Supp.
at 884 (Frankel, J., dissenting) (agreeing that it was
“acceptabl[e] all around” to “speak of a ‘reasonable
discretion’ left to the state legislatures”). The Seventeenth
Amendment question presented here is whether, by fixing
the date of that election as November 3, 2020—i.e., more
than 26 months after Senator McCain’s death on August 25,
2018—the Arizona legislature has transgressed the proper
boundaries of the discretion conferred by that amendment.
See Ariz. Rev. Stat. § 16-222(D) (providing that where, as
here, a vacancy occurs 150 days or fewer “before the next
regular primary election date, the person who is appointed
shall serve until the vacancy is filled at the second regular
general election held after the vacancy occurs”) (emphasis
added).
62 TEDARDS V. DUCEY
The answer to this question is dictated by the
precedential effect of the Supreme Court’s summary
affirmance in Valenti, particularly as construed by the
Court’s subsequent decision in Rodriguez v. Popular
Democratic Party, 457 U.S. 1, 10–11 (1982). The three-
judge district court in Valenti rejected a similar Seventeenth
Amendment challenge to New York’s 29-month delay in the
election to fill the vacancy created by the assassination of
Senator Robert F. Kennedy in 1968, and the Supreme
Court’s affirmance of that decision—coupled with
Rodriguez’s subsequent discussion of that affirmance—
leaves no doubt that we must reject Plaintiffs’ Seventeenth
Amendment claim here.
In Valenti, a three-judge district court rejected the
plaintiffs’ constitutional challenges to a New York statute
that effectively set November 3, 1970 as the date of the
election to fill the vacancy created by Senator Kennedy’s
death on June 6, 1968. See 292 F. Supp. at 853. 1 After
rejecting the plaintiffs’ contention “that an election in 1968
is constitutionally required,” the court concluded that it
“must also answer another question: Does the Seventeenth
1
Valenti actually involved three separate actions, two of which were
filed in the Southern District of New York (Phillips v. Rockefeller and
Backer v. Rockefeller) and one of which was filed in the Western District
of New York (Valenti). The three actions apparently were not
consolidated. Instead, to “facilitate prompt disposition of the common
question, identical three-judge courts were designated in each case” by
assembling a panel consisting of a Second Circuit judge and a district
judge from each of the two districts involved. 292 F. Supp. at 854. The
cases were argued together, see id., and “[d]uplicate originals” of the
resulting opinion were filed in each district, id. at 868. The plaintiffs in
each case separately appealed to the Supreme Court, which separately
affirmed each judgment without opinion. See Phillips v. Rockefeller, 393
U.S. 406 (1969); Valenti, 393 U.S. at 405; Backer v. Rockefeller, 393
U.S. 404 (1969).
TEDARDS V. DUCEY 63
Amendment prohibit New York from bypassing its general
election in 1969 in favor of filling the vacancy in November,
1970?” Id. at 855 (emphasis added). After an extensive
analysis, the court answered this question in the negative and
concluded that the New York legislature had “not
contravene[d] the powers” conferred on it by the
Seventeenth Amendment, even though “in the tragic
circumstances of Senator Kennedy’s death the statutory
chronology results in a delay of 29 months before the
election of his successor by the people.” Id. at 867–68.
The Supreme Court summarily affirmed without
opinion. See 393 U.S. at 404–06. As the majority
recognizes, see Majority Opinion at 45, we are bound by the
result, if not the precise reasoning, when the Supreme Court
summarily affirms a judgment. See Wisconsin Dep’t of
Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 224 n.2
(1992) (citing Anderson v. Celebrezze, 460 U.S. 780, 784 n.5
(1983)). And because the 26-month delay at issue here is
shorter than the 29-month delay upheld against a
Seventeenth Amendment challenge in Valenti, we are bound
under Valenti to reject Plaintiffs’ challenge here.
Plaintiffs seek to evade Valenti by arguing that the
“specific relief” sought in the complaints in those cases was
“an election in November 1968 only and at no other time”;
that “all the summary affirmance necessarily did was to deny
an election on that date”; and that the Court therefore did not
“necessarily uph[o]ld a 29-month delay in filling a Senate
vacancy.” This contention fails. As an initial matter,
Plaintiffs’ narrow characterization of the constitutional
challenges presented in Valenti is belied by the district court
opinion, which expressly addressed both the plaintiff’s
“main argument” for a 1968 election date and their
alternative argument for a 1969 election date. 292 F. Supp.
64 TEDARDS V. DUCEY
at 855. Thus, while we are not bound by the Valenti district
court’s reasoning in upholding a 29-month delay until the
second subsequent congressional election, there can be no
doubt that the district court’s judgment included a rejection
of a Seventeenth Amendment challenge to such a delay, and
we are bound by the precedential effect of the Supreme
Court’s summary affirmance of that judgment. Anderson,
460 U.S. at 784 n.5 (“[T]he precedential effect of a summary
affirmance extends no further than ‘the precise issues
presented and necessarily decided by those actions.’”).
Moreover, as the Supreme Court has explained,
“[s]ummary affirmances . . . without doubt reject the specific
challenges presented in the statement of jurisdiction and do
leave undisturbed the judgment appealed from.” Mandel v.
Bradley, 432 U.S. 173, 176 (1977) (per curiam) (emphasis
added). 2 The first question presented in the jurisdictional
statement filed in the Supreme Court in the Phillips case was
as follows:
Did New York State’s Legislature in enacting
Section 296 of the Election Law violate
Amendment XVII to the Constitution of the
United States by vesting in the Executive the
power to make a 29 months “temporary
appointment” (from June 7, 1968 to
December 1, 1970) and by vesting in “the
people” (8,000,000 registered voters) the
2
Then, as now, the Supreme Court’s rules required that, in cases
appealed as of right to the Court, the appellants must file a “jurisdictional
statement” setting forth, inter alia, the questions presented and the basis
for invoking the Court’s appellate jurisdiction. See S. CT. R. 15 (1967
ed.); cf. S. CT. R. 18.3 (2019 ed.) (retaining a comparable requirement
for the much smaller class of cases that remain within the Court’s
mandatory appellate jurisdiction today).
TEDARDS V. DUCEY 65
right to elect a Senator of their own choosing
for only 1 month (December 1, 1970 to
January 3, 1971) where the total unexpired
term of the late Senator Robert F. Kennedy
was 30 months?
Jurisdictional Statement, Phillips v. Rockefeller, 393 U.S.
406 (1969) (No. 854), 1968 WL 129208, at *4–5 (emphasis
added); see also id. at *6 (“[A] judgment by this Court
reversing the judgment below would make possible an
election for the Senate seat at the November, 1969 election.
Or at an earlier special election by order of this Court.”).
Similarly, the jurisdictional statement in the Backer case
challenged the district court’s upholding of the November
1970 date over a November 1969 date. See Statement as to
Jurisdiction, Backer v. Rockefeller, 393 U.S. 404 (1969) (No.
852), 1968 WL 112484, at *10 (“The lower court explicitly
decided . . . the question: Does the Seventeenth Amendment
prohibit New York from bypassing its general election in
1969 in favor of filling the vacancy in November, 1970? The
question was answered in the negative.”). By separately and
summarily affirming the judgments in Phillips and Backer,
see 393 U.S. at 404, 406, the Supreme Court “without doubt
reject[ed] the[se] specific challenges presented in the
statement of jurisdiction,” and the Court therefore
necessarily rejected these plaintiffs’ challenges to the 29-
month delay. Mandel, 432 U.S. at 176. We are bound by
that holding, which requires us to reject Plaintiffs’
Seventeenth Amendment challenge here.
In addition, as the majority correctly notes, see Majority
Opinion at 48, the Supreme Court’s subsequent decision in
Rodriguez further confirms that Plaintiffs’ narrow reading of
Valenti is incorrect. In Rodriguez, the Court addressed a
constitutional challenge to Puerto Rico’s system for filling
66 TEDARDS V. DUCEY
vacancies in its commonwealth legislature through
temporary appointments lasting “only until the next
regularly scheduled election.” 457 U.S. at 7; see also id. at
8–12. 3 The challengers contended that “qualified electors
have an absolute constitutional right to vote for the members
of a state or commonwealth legislature, even when a special
election is required for this purpose.” Id. at 8–9. In rejecting
this contention, the Court drew an analogy to its summary
affirmance in Valenti. Summarizing that ruling, the Court in
Rodriguez did not refer to Valenti as addressing only a claim
that the vacancy election had to be held within five months.
Rather, the Court explained that Valenti had “sustained the
authority of the Governor of New York to fill a vacancy in
the United States Senate by appointment pending the next
regularly scheduled congressional election—in that case, a
period of over 29 months.” 457 U.S. at 10–11 (emphasis
added). The Court reasoned that the Rodriguez challengers’
insistence on a constitutional right to a special election (i.e.,
an election in advance of the next regularly scheduled
legislative election in Puerto Rico) was hard to square with
Valenti: “[T]he fact that the Seventeenth Amendment
permits a state, if it chooses, to forgo a special election in
favor of a temporary appointment to the United States Senate
suggests that a state is not constitutionally prohibited from
exercising similar latitude with regard to vacancies in its
own legislature. We discern nothing in the Federal
Constitution that imposes greater constraints on the
Commonwealth of Puerto Rico.” Id. at 11. Rodriguez’s
discussion of Valenti confirms that the Court understood its
3
In Rodriguez, a person elected to the Puerto Rico House of
Representatives died shortly after the election, see 457 U.S. at 3, and the
vacancy was ultimately filled by a member of the same political party
who was designated after “a primary election in which only [that party’s]
members were permitted to participate,” id. at 5 n.3.
TEDARDS V. DUCEY 67
summary affirmance as rejecting a Seventeenth Amendment
challenge to New York’s 29-month delay until the next
regularly scheduled election that would allow sufficient lead
time for a primary election.
I therefore agree with the majority’s conclusion that,
because Arizona’s delay of the vacancy-filling election
“does not exceed” the delay “endorsed by Valenti and
Rodriguez,” the “timing provision of A.R.S. § 16-222(D) as
applied to the McCain vacancy is a permissible exercise of
the State’s discretion under the Seventeenth Amendment.”
See Majority Opinion at 53--54. I thus concur in Part I(B)
of the “Analysis” section of the court’s opinion and concur
in its judgment rejecting Plaintiffs’ Seventeenth Amendment
challenge.
II
I agree with the court’s rejection of Plaintiffs’ First and
Fourteenth Amendment challenges to the date of the
vacancy-filling election, and I therefore concur in Part II of
the court’s “Analysis” section. Indeed, Plaintiffs’ arguments
on this score seem difficult to square with Rodriguez’s
observation that Puerto Rico’s “choice to fill legislative
vacancies by appointment rather than by a full-scale special
election may have some effect on the right of its citizens to
elect the members of the Puerto Rico Legislature; however,
the effect is minimal, and like that in Valenti, it does not fall
disproportionately on any discrete group of voters,
candidates, or political parties.” 457 U.S. at 12 (emphasis
added).
III
Lastly, I agree with the court that Plaintiffs lack standing
to challenge the requirements in Arizona law that (1) the
68 TEDARDS V. DUCEY
Governor must make an appointment, and (2) the person
selected must be from the same political party as the person
who vacated the office. As the court explains, Plaintiffs
cannot fairly trace their asserted injuries to these statutory
provisions, as opposed to the Governor’s independent
decisions. I therefore join Part III of the court’s “Analysis”
section. For similar reasons, I believe that Plaintiffs also fail
the redressability prong of standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). Given that Governor
Ducey has stated that he would have appointed McSally
regardless of these statutory constraints, see Majority
Opinion at 59, any judgment invalidating those constraints
would not redress these Plaintiffs’ alleged injuries.
* * *
For the foregoing reasons, I join Parts I(B), II, and III of
the court’s “Analysis” section, and I concur in the court’s
judgment affirming the district court’s dismissal of this
action.