Filling U.S. Senate Vacancies in Vermont: Replacing Bernie Sanders Is Harder Than It Seems
By: Tyler Yeargain | Associate Director, Yale Center for Environmental Law and Policy
February 15, 2021
What if things had gone differently in 2020? There are countless ways to present the hypothetical—what if Pete Buttigieg had won Iowa outright, and walked away from the caucus with momentum? What if Joe Biden hadn’t been endorsed by Congressman Jim Clyburn just before the South Carolina primary, preventing him from securing a landslide win in the state? What if Elizabeth Warren hadn’t delivered a knockout blow to Mike Bloomberg on the debate stage, allowing his campaign to finish strong? What if any of these things happened, resulting in Vermont’s own Bernie Sanders as the Democratic nominee for President in 2020? And what’s more—what if he won? Instead of the mittens memes from Inauguration Day, we would’ve instead been gifted with countless meme-able moments from Bernie’s inauguration speech.
We also would’ve been confronted with a particularly sticky problem: how to replace Bernie in the Senate. Because the current Governor of Vermont, Phil Scott, is a Republican, he could’ve appointed a Republican as Bernie’s replacement. (He promised not to, but he would’ve been under no obligation to keep that promise.) That could’ve shifted a 50–50 Democratic Senate to a 51–49 Republican Senate, at least until a special election could be held.
But wait. Some states—namely, Arizona, Hawaiʻi, Maryland, North Carolina, and Wyoming—require that a Senate vacancy be filled with a same-party appointment. Surely the same sort of requirement could’ve been imposed by the Vermont General Assembly, requiring Governor Scott to pick a Democrat to replace Bernie.
Yes and no. Yes, such a requirement could’ve been imposed. No, it likely wouldn’t have helped. There are a couple main problems with how this requirement likely would’ve utterly failed, or would’ve needed to be a tangled web of exceptions and asterisks, but it’s easy enough to unpack.
First, we need to understand how most same-party replacement systems work. While they’ve only been sparingly adopted at the federal level—and thus we don’t have much of a track record for how they play out—they’ve existed at the state level in some form or another for over a century. These systems come in many different forms. As I’ve explained elsewhere, sometimes they give the appointing power to the governor, sometimes to a county commission, sometimes to the state legislature, and sometimes even to the state party directly. But the Seventeenth Amendment to the Constitution makes this an easy question for U.S. Senate vacancies—the Governor is required to fill the vacancy. So a same-party requirement could loosely require the Governor to simply appoint a member of the same party, or it could require the state party to give the Governor a list of potential candidates, a list from which they must pick one.
But that’s only half the battle. What does “same-party” mean? In many states, “party” is (implicitly) defined as the party that nominated the candidate at the most recent election; in many others, it’s defined as the party with which the candidate was associated or affiliated most recently. (This distinction matters a lot for state legislators who switched parties.)
And so we immediately come to a problem in Vermont. In 2018, the most recent election for the Class I Senate seat that Bernie holds, he was nominated as a Democrat—but declined the nomination. Moreover, Vermont is one of the few states that still allows fusion-ticket voting, which enables more than one party to nominate the same candidate. In 2020, for example, Lieutenant Governor David Zuckerman was nominated for Governor by both the Democratic Party and the Progressive Party. So building out a same-party requirement that focuses on nomination would suffer some serious problems.
But if the same-party requirement was imposed with respect to affiliation, we’d run into a similar problem. Because voters don’t register to vote in Vermont with a party, the “same party” couldn’t be based on registration. It would have to instead be based on a candidate’s informal association or affiliation with a party. In Bernie’s case, there would be a pretty strong case that he is associated or affiliated with the Democratic Party—he ran for President twice as a Democrat, was nominated by the Democratic Party in 2018, and caucuses with the Democratic Party in the Senate.
Alternatively, a same-party requirement could include a special exception for “independent” or “unaffiliated” state legislators, a practice adopted by many states. In states with these processes, there is a rainbow of varying options. In some cases, the Governor can appoint whomever they want; in others, they (or the appointing official) are required to appoint another independent; in others still, there is either no explicit procedure or the seat is explicitly left vacant. Colorado employs the most unusual (and, in my view, the best) option: each independent candidate for the state legislature designates a “vacancy committee” that is tasked with picking their replacement should they be elected to office and then vacate their seat.
Vermont could’ve adopted such a requirement, but retroactively requiring a successful independent candidate for office to name a “vacancy committee” is suspect—and could easily run afoul of the Seventeenth Amendment, which requires the Governor to make the appointment. It’s possible that the “vacancy committee” could act as a sort-of, makeshift political party and present the Governor with several different options.
Of course, it’s possible that all of these options are unconstitutional under the Seventeenth Amendment. That’s what Vikram Amar has repeatedly argued, for example. Under Professor Amar’s view of the Seventeenth Amendment, the Governor’s power to appoint is virtually unlimited, and the only thing that the legislature can do is either grant them the power or deny them the power; it cannot condition the exercise of the power. I personally disagree with this view, but in any event, there’s no guidance from any federal court as to whether this is constitutional. No challenge to a same-party appointment system as applied to a U.S. Senate vacancy has ever been adjudicated, and given the (relative) rarity of Senate vacancies, it may never be adjudicated.
In any event, the fact that Bernie wasn’t elected President in 2020, or that he didn’t end up as President Biden’s Secretary of Labor, shouldn’t obviate the need for Vermont to adopt a same-party replacement system for U.S. Senate vacancies. As recent news surrounding Senator Patrick Leahy’s health has demonstrated, the unthinkable is always possible. And it’s incumbent on the Vermont General Assembly to plan for the unthinkable—and to avoid an outcome in which an untimely vacancy flips a Senate seat, and with it, control of the federal government.
 Domenico Montanaro, 3 Big Questions After the Iowa Results Meltdown, NPR (Feb. 4, 2020, 2:00 PM ET), https://www.npr.org/2020/02/04/802681380/what-the-iowa-meltdown-means-and-where-we-go-from-here (“[I]magine, for example, if on caucus night, it was known in prime time that Sanders and Buttigieg were the top two. And imagine what that would mean for Biden’s candidacy — and fundraising.”).
 Donna M. Owens, Jim Clyburn Changed Everything for Joe Biden’s Campaign. He’s Been a Political Force for a Long Time., Wash. Post (Apr. 1, 2020, 6:00 AM EDT), https://www.washingtonpost.com/lifestyle/style/jim-clyburn-changed-everything-for-joe-bidens-campaign-hes-been-a-political-force-for-a-long-time/2020/03/30/7d054e98-6d33-11ea-aa80-c2470c6b2034_story.html.
 Christopher Cadelago & Sally Goldenberg, Bloomberg Tumbles Heading into Super Tuesday, Politico (Feb. 27, 2020, 4:30 AM EST), https://www.politico.com/news/2020/02/27/bloomberg-super-tuesday-polls-117796.
 E.g., Lisa Rathke, Bernie Sanders’ Mittens, Memes Help Raise $1.8M for Charity, Associated Press (Jan. 27, 2020), https://apnews.com/article/bernie-sanders-mittens-memes-charity-3f8afd8e8a5a0b8b9709dd6d4d30ec13.
 Paul Heintz, Scott Says He Would Replace Sanders with Democrat-Affiliated Independent, Seven Days (Burlington, Vt.) (Oct. 23, 2020, 4:26 PM), https://www.sevendaysvt.com/OffMessage/archives/2020/10/23/scott-says-he-would-replace-sanders-with-democrat-affiliated-independent.
 Tyler Yeargain, Same-Party Legislative Appointments and the Problem of Party Switching, 8 Tex. A&M L. Rev. 163, 196 n.219 (2020), https://scholarship.law.tamu.edu/lawreview/vol8/iss1/6/.
 Tyler Yeargain, The Legal History of State Legislative Vacancies and Temporary Appointments, 28 J.L. & Pol’y 564, 587–601 (2020), https://brooklynworks.brooklaw.edu/jlp/vol28/iss2/4/.
 Id. at 602–10.
 U.S. Const. amend. XVII (amended 1913) (“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.”).
 Yeargain, supra note 6, at 173–79.
 Sean Sullivan, Bernie Sanders Wins the Democratic Nomination. Just Don’t Expect Him to Run with It., Wash. Post (Aug. 14, 2018, 8:23 PM EST), https://www.washingtonpost.com/politics/2018/live-updates/midterms/live-primary-election-results/bernie-sanders-wins-the-democratic-nomination-just-dont-expect-him-to-run-with-it/?arc404=true/.
 Adam Morse & J.J. Gass, Brennan Ctr. for Justice, More Choices, More Voices: A Primer on Fusion 1–2 (Oct. 2006), https://www.brennancenter.org/sites/default/files/2019-08/Report_More-Choices-More-Voices.pdf.
 Jane Lindholm & Emily Aiken, Candidate Conversations: David Zuckerman Runs for Governor, VPR (Oct. 13, 2020), https://www.vpr.org/post/candidate-conversations-david-zuckerman-runs-governor#stream/0.
 Taylor Dobbs, How Will Bernie Sanders (Officially) Become a Democrat?, VPR (May 1, 2015), https://www.vpr.org/post/how-will-bernie-sanders-officially-become-democrat#stream/0.
 Tyler Yeargain, Third Wheeling in the Two-Party System: How Same-Party Replacement Systems Impede the Replacement of Independent and Third-Party Legislators, 123 W. Va. L. Rev. 393, 403–409 (2021).
 Id. at 404–05, 418–21.
 See generally Vikram David Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hastings Const. L.Q. 727 (2008) (arguing that the Seventeenth Amendment precludes such requirements).
 Id. at 729–37.
 As does Professor Sanford Levinson, see generally Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How Best to Interpret the Seventeenth Amendment, 35 Hastings L.Q. 713 (2008).
 The closest that a court got to reaching the issue was the Ninth Circuit in Hamamoto v. Ige, but the panel declined to reach the constitutional argument, concluding that the issue was moot. 881 F.3d 719, 723 (9th Cir. 2018) (per curiam).
 Appointed Senators (1913-Present), U.S. Senate, https://www.senate.gov/senators/AppointedSenators.htm (last accessed Jan. 27, 2021).
 Dan D’Ambrosio, President-elect Biden Explains Why He Passed on Sanders for Labor Secretary, Burlington Free Press (Jan. 8, 2021, 5:04 PM ET), https://www.burlingtonfreepress.com/story/news/2021/01/08/biden-decides-not-tap-sanders-labor-secretary/6601923002/ (“Biden said Sanders agreed that after the Georgia run-off, having a special election in Vermont to replace Sanders should he join Biden’s Cabinet was too risky.”).
 Burgess Everett, Leahy’s Hospitalization Shows Dems’ Majority Hangs by a Thread, Politico (Jan. 27, 2021, 11:26 AM EST), https://www.politico.com/news/2021/01/27/patrick-leahy-health-463080.
Tyler Q. Yeargain is the Associate Director of the Yale Center for Environmental Law and Policy at Yale Law School. He graduated from the Emory University School of Law with High Honors in 2019 and subsequently clerked on the United States Court of Appeals for the Eleventh Circuit for Judge Lanier Anderson. His research focuses on the relationship between the formation of state government institutions and policy outcomes in a variety of areas—especially in criminal, election, and environmental law.