HELENA — Montana Rep. Ryan Zinke’s decision to join President-elect Donald Trump’s cabinet has exposed a potential constitutional flaw in the first test of a new state law on filling vacancies in the U.S. House and Senate.
The law calls for a special election to be held between 85 and 100 days of a vacancy. It also gives the governor the option of appointing a temporary replacement from the same political party of the departing representative or senator who would serve until the election results are certified.
However, Secretary of State Linda McCulloch says the U.S. Constitution allows only for the appointment of an interim senator, and not for an interim representative. “The bill and subsequent annotation is contrary to the United States Constitution which requires a special election, but no appointment,” McCulloch said in a statement Wednesday.
The lawmaker who sponsored the 2015 bill disputed that interpretation, saying Thursday that Bullock should make an interim appointment because it is critical that the state’s one congressional seat is filled.
“Until they take it to the Supreme Court and they say we can’t do it, we should go ahead as the law is written,” said Sen. Brad Hamlett, D-Cascade.
Zinke will become Trump’s Interior Department secretary, according to an announcement by the president-elect’s transition team on Thursday. It is not clear when Zinke will vacate the U.S. House seat that he was re-elected to last month, but when he does, Democratic Gov. Steve Bullock will have to call a special election for voters to pick a replacement to serve out Zinke’s House term.
The state law says Bullock “may” appoint an interim replacement from a list of three candidates selected by the state Republican Party. Bullock’s office, GOP chairman Jeff Essmann and political observers began to question that provision when Zinke’s potential departure from the House surfaced on Tuesday.
McCulloch’s statement asserting that the state law runs against the U.S. Constitution cites a 2003 Congressional Research Service memo to Congress that says the state executive’s authority to fill U.S. House vacancies is to issue a writ of election.
“The Constitution thus requires that all House vacancies be filled by special election,” the memo said. “There is no constitutional provision for the appointment of interim representatives.”
Hamlett responded that his bill went through legal reviews in the Legislature and by Bullock before the governor signed it into law, and that any conflict with the U.S. Constitution would have come up then.
No lawsuit has been filed challenging the state law and a judge has not ruled on whether it is constitutional.
Hamlett urged the state GOP to prepare its list of candidates immediately and for Bullock to make his choice as soon as Zinke vacates the seat.
Bullock spokeswoman Ronja Abel said the governor would take a close look at the law when he returns from a meeting of the Western Governors Association in San Diego.
The bill had only three dissenting votes out of 150 Montana representatives and senators. Essmann voted for the measure.
The law passed in the wake of Bullock appointing his former lieutenant governor, John Walsh, to the U.S. Senate in 2014 when Max Baucus left that office to become the U.S. ambassador to China. Republican leaders at the time criticized Bullock for making the appointment without adequate public comment.