As pressure mounts on Senator Dianne Feinstein to resign before the end of her term, it’s important to understand what the Constitution requires if

and or

when that happens. The short answer: an election.

But even if Feinstein steps down soon, California law doesn’t require a vote to fill the vacancy until the next general election, more than a year and a half from now. The state can better serve the constitution and voters by holding special elections soon.

In the event of a Senate vacancy, both the 17th Amendment to the Constitution and California’s election law allow Gov. Gavin Newsom to make a temporary appointee to fill the seat, just as he did in appointing Alex Padilla to the state’s other Senate seat. But the Constitution also requires an election that allows California residents to decide who will serve for the remainder of the unexpired term. If Feinstein decides to relinquish her seat, California must comply with that constitutional and democratic imperative by calling a special election as soon as possible.

US Senators are not always elected. For the first century and a half of this country’s history, they were selected by state legislatures. That changed during the Progressive Era, when pushes to democratize the U.S. government led to the passage of the 17th Amendment, which took effect in 1913.

Elections are the focus of the 17th amendments. It orders that the people directly elect their U.S. senators to six-year terms.

Of course, senators sometimes leave office before their terms expire. Prior to the ratification of the 17th Amendments, such vacancies were traditionally filled by appointment by the governor. The 17th Amendment did not end gubernatorial appointments; instead, it says a state legislature can authorize a governor to appoint a temporary replacement until the state holds an election to fill the seat.

These two features of the amendment nomination and election can work together to promote democratic values. While appointees are not elected by voters, they do ensure that the people of a state will not be left without full representation. They can also counter anti-democratic aspects of the political process by empowering under-represented communities.

For example, nine of the first 13 women to serve in the Senate arrived as gubernatorial appointees. The first, Rebecca Latimer Felton of Georgia, was appointed by a governor seeking political cover after opposing women’s suffrage. And two of the earliest elected female senators had previously served as appointees.

Despite these benefits, the amendment is clearly on the point that they are only temporary and states must hold elections to fill any vacancy in the Senate. Elections are the 17th amendments lodestar.

That is not to say that the states always follow this constitutional requirement. In studying more than 200 job openings since 1913, we found that states have failed to fill job openings in about one-sixth of cases.

When Illinois Governor Rod Blagojevich tried to sell the Senate seat that Barack Obama vacated to become president, state law would have allowed his appointed replacement to complete the term without an election. It took a lawsuit in federal court to force Illinois to comply with the Constitution and hold an election to fill the vacancy.

Even when states formally meet the election requirement, we found that many dragged their feet, unnecessarily giving voters a chance to weigh in. Since 1913, more than 60 Senate vacancies lasted more than a year before an election was held. Indeed, California’s Padilla, who was appointed by Newsom when Kamala Harris left her seat to become vice president, served nearly two years as an unelected appointee before winning a vacancy election last fall. That was when the state held a special election to run the last few months of Harris’s term concurrently with the general election for the next six-year term.

All told, temporary appointments have deprived the American people of elected representation for a total of more than 200 years since the ratification of the 17th Amendment.

Which brings us back to Feinstein. Californians have the right to directly elect two U.S. Senators. If one of those senators leaves, the governor should use his statutory power to ensure that the people are represented by an appointee in the short term, and should consider using his nominating power to express the diversity of political representation in the Senate. to expand.

But even the most commendable appointee is not allowed to hold the office for months without an election. The constitution would mandate an election to serve Feinstein’s term, and the state should hold one as soon as possible.

If Feinstein steps down, Newsom must work with the legislature to schedule special elections according to the letter and spirit of the Constitution. While turnout in special elections tends to be lower, modern efforts to make voting easier, including early voting, mail-in ballots, and automatic registration, can mitigate that problem.

Tying an appointment to a speedy special election would be the best way to honor Feinstein’s long career in an election office and our Democratic values. It is also what the Constitution requires.

Zachary Clopton is a professor at Northwestern University’s Pritzker School of Law. Steve Art is a civil rights attorney at Loevy & Loevy.