Johnson's Illness Underscores Uncertainty

Dec. 14, 2006 — -- The sudden illness of South Dakota Sen. Tim Johnson sent Washington politicians and reporters scurrying to the rule books for answers:

What happens when a member of Congress becomes incapacitated?

It turns out there are different answers for members of the House and Senate. And different answers, too, depending on the particular state.

What is legal in your state may be illegal in the state next door.

When the House has a vacancy, the Constitution says it must be filled by a special election. But the Constitution permits Senate vacancies to be filled either by special elections or by appointments from governors.

According to the Congressional Research Service at the Library of Congress, it is up to state legislatures to grant that power to governors. And some states have refused to do that.

Alaska, Oregon and Wisconsin expressly forbid the governor to make an interim appointment. Those three states require special elections. Oklahoma's statute requires close reading, and even then it can sound confusing.

The CRS says, "If the vacancy occurs after March 1 of any even-numbered year and the term expires the following year, no special election is held; rather, the governor is required to appoint the candidate elected in the regular general election to fill the unexpired term." Well, as we said, it requires close reading.

Democrats are nervous because Johnson, a Democrat, comes from South Dakota, one of the states that permit the governor to choose a replacement from a different party than the senator who is replaced.

The governor of South Dakota, Mike Rounds, is a Republican. He could legally choose a Republican to serve the remainder of Johnson's term through 2008. That would give the GOP control of the closely divided Senate.

Democrats would be a lot less nervous if Johnson came from a state that severely restricts the governor's authority. Arizona and Hawaii require the governor to choose a replacement from the previous incumbent's party. In Utah and Wyoming, the governor has to choose from among three people proposed by the previous incumbent's party.