Day: October 28, 2008

           Following Senator Stevens’s conviction yesterday, the Anchorage Daily News has spotlighted an interesting issue that would arise in the event Stevens were to resign.  Evidently the Alaska Legislature passed a law in 2004 which allowed the Governor to make a temporary appointment to fill a Senate vacancy pending a special election to fill the seat.  However, later in 2004 the voters approved a ballot initiative which purports to take away the temporary appointment power. 

            Under the Seventeenth Amendment, “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”  The issue, then, is whether the power granted by the Seventeenth Amendment can be taken away from the state legislature by some other state authority, in this case the voters by ballot initiative. 

            I have not done exhaustive (or even tiring) research on the issue.  It appears, though, that Supreme Court cases on state legislative action regarding the time, place and manner of federal elections would be relevant here.  Although the Constitution provides that regulations on time, place and manner “shall be prescribed in each State by the Legislature thereof,” the Court has held that this does not pre-empt state constitutional provisions that limit a state legislature’s lawmaking authority, such as provisions that a billed passed by the legislature may be vetoed by the Governor, Smiley v. Holm, 285 U.S. 355 (1932), or may be negated by a referendum, Davis v. Hildebrant, 241 U.S. 565 (1916).    

            However, there is an important distinction between the Alaska situation and those considered in Smiley and Davis.  In those cases the question was whether to give effect to a legislative action that, under state law, had never become legally effective.  In Alaska, on the other hand, the question is whether to give effect to a ballot initiative, passed without any involvement of the legislature, and which supersedes a law previously passed by the legislature.  In other words, Alaska case raises the novel (as far as I know) question of whether the powers delegated by the Seventeenth Amendment to the state “legislature” can be exercised without any involvement of the actual legislature.