Craig Thomas' Replacement -- Wyoming and the 17th Amendment

Last week I exchanged some e-mails with Blue Girl. The traffic went a little like this.

Blue Girl--Senator Craig Thomas (R-Wy) has just lost his tragic battle with cancer. The governor of Wyoming is a Democrat. It looks like the razor thin balance in the Senate just shifted a little to the blue end of the spectrum.

Corpus Juris--Na, under Wyoming law the Democratic Governor has to pick the replacement from three candidates nominated by the Wyoming Republican party.

Blue Giri--I am sad for the Thomas family, but rats.

Digging around this morning I uncovered a legal analysis of Wyoming's selection process. Findlaw's Vikram David Amar argues that any effort by the Wyoming legislature to limit the governor's discretion in the selection of a replacement violates the text of Section 2 of the 17th Amendment to the US Constitution. That section reads

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.

Amar says

There is a very strong textual argument that the Seventeenth Amendment prevents the Wyoming legislature from dictating the Governor's choices in making a temporary appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive to make [the] appointment."

There is no case law interpreting section 2. If Governor Dave Freudenthal chose to rely on Amar's argument and ignore the legislatively authorized selection process, we would bump up against a significant Constitutional question. Do you think the Democrats want that fight?

My guess is they would only if the three Republican nominees are limited to Lynne Cheney and two of Casper, Wyoming's less well known town drunks. If the Republicans nominate anybody close to reasonable, Freudenthal will avoid the battle. In addition to Cheney a Fox News short list of possible names includes state Sen. John Barrasso; state Rep. Colin Simpson, son of former Sen. Alan Simpson; and U.S. Attorney Matt Mead. None of those guys are town drunks.