OK - where's the special election come from?

[TTS1996]

Now, I'm from a country where a by-election (i.e. special election) doesn't come about until an MP puts in a resignation. So, forgive my ignorance, but where does the OK special election for Senator come from? As I see it, Tom Coburn is still (one of) the Senators for Oklahoma. He sits in the Senate, votes there, still will til January. He has handed in no effective resignation letter, not yet.

So, I don't understand where the election comes from? Yes, I do know he has an irrevocable letter of resignation, effective January 2015, but next January is next January, and I simply do not see how a special election can get underway without a vacancy. As I see it there's no vacancy to trigger an appointment or special election until he goes in January.

Please, anyone willing to go through OK law (or US law as the case might be) sufficiently to explain convincingly how a Senate vacancy occurs without a resigning Senator?

NB Even if you explain the OK law perfectly, don't expect not to get expostulations of disbelief from me largely based on Americophobic attitudes against the whirligig of Senate appointments and special elections. But bonus points if you can explain OK law on this. I just don't see how a special election occurs with the senator still happily there.

[Miles]

I'd recommend checking out this post on RRH. They get into some discussion about the process there.

The actual law:

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Basically, the Senator announces a resignation date in a binding resignation letter. Then, the special election takes place in the interim between when the Senator submits his letter and when he actually vacates office. This process is unique to Oklahoma.

Cobrun submitted his letter back in January.

[TTS1996]

Many thanks, I thought there'd be something like this.

It's still wrong, mind (I don't mean your post from the OK Constitution is wrong) - I mean, what is in the OK Constitution is wrong - a state should not be able to start the processes of a special election consequent on a senator resigning, without said senator clearing out of the Senate lock stock and barrel, and thereby actually creating the vacancy to which the successor is to be elected.

Now, discuss.

[Joe Biden 2020]

Many thanks, I thought there'd be something like this.

It's still wrong, mind (I don't mean your post from the OK Constitution is wrong) - I mean, what is in the OK Constitution is wrong - a state should not be able to start the processes of a special election consequent on a senator resigning, without said senator clearing out of the Senate lock stock and barrel, and thereby actually creating the vacancy to which the successor is to be elected.

Now, discuss.

Tom Coburn said back in January that he would retire from Congress, due to medical reasons, at the end of this year and not finish out his term.  Therefore, somebody has to replace him.  James Lankford, who won the primary in June and will likely be the next Senator from Oklahoma, will be formally elected on November 4 and will be sworn-in in January when the new Congress is sworn-in.  Oklahoma can't afford to wait until Coburn officially leaves Congress to start the campaign process.  Jim Inhofe, who is also up for re-election this year, should not serve Oklahoma by himself.  In no way is it wrong, it is just procedural after a member of Congress announces his resignation.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I agree that it would be wrong were it possible for Coburn to rescind his letter of resignation, but it's not, so I don't think there's a problem.

[jimrtex]

The law appears to have an interesting history.  If you look at the statutes it was changed in 2012.

So I looked up the 2012 session laws.  There was a bill that changed several of the sections related to vacancies and special elections, but the only change to 26-12-119 was to make the starting date for the new senator (or representative!) the latter of (a) the date the election results are certified, or (b) the resignation date of the current office-holder.  Under the previous version, (a) was the election date.  So this was a minor change to recognize that elections are not instantly resolved.

The previous change to 26-12-119 was in 2002 (when it was added).  In the same bill, subsections 26-110(C) and 26-110(D) were eliminated.

26-110(C) was similar to 26-12-119, but applied only in the case of a senator who declared his future irrevocable intent to resign before July 1 of an even numbered year, with more than two years remaining in his terms.  In effect, it permitted the special election to occur with the regular primary and general election.

26-110(D) applied only to the House of Representatives, and only to an irrevocable intent to resign made before October 29, 2001; and provided dates for a special primary of December 11, 2001, primary runoff of January 8, 2002, and special election on February 12, 2002.

If you take Oklahoma Special Elections or NFL Greats for $400, the question would be: "Who is Steve Largent?"  Steve Largent resigned his house seat effective on February 15, 2002 in order to run for Governor, and the law was changed to permit his successor to be chosen prior to the effective date of his resignation.

So the 2002 addition of 26-12-119 was to generalize the concept which had previously only applied to certain senatorial vacancies, and to remove the very special case language that had been added the year before.

The 2001 change was made in the 1st Extraordinary Session, and was passed on October 23, 2001 with an immediate effective date, and a presumption that some representative might in the next 6 days set their resignation to occur on February 15.

Reading Steve Largent's biography, I came across the extraordinary discovery that he had been appointed to the House of Representatives.

26-12-101(B) provides that when a congressional vacancy occurs in an even year, that no special election be held, but that the representative or senator elected at the regular election be appointed to the remnant of the vacancy.  James Inhofe, who had been elected to the Senate, resigned his House seat on November 15.  Steve Largent who had been elected to the full term on November 8, was appointed to fill the final month-and-a-half of Inhofe's term.  This extra-constitutional appointment was approved by the House:

HR 105, 103rd Congress authorized the Speaker (Tom Foley) to administer the oath of office to Largent, and left the question of Largent to the seat to the House Administration committee.  I suspect they just ran out the clock.   The resolution was sponsored by Robert Michel, then the minority leader.  Michel did not seek re-election in 1994; Foley was defeated; the Republicans became the majority, with Newt Gingrich becoming speaker.

Inhofe ran for the Senate in 1994, to replace David Boren, who had two years remaining on his term.  Boren announced that he was resigning on April 28, 1994 to become president of the University of Oklahoma, but his resignation was not effective until November 15, 2004.

This apparently permitted the special election to replace him to be held on the regular election schedule, prior to his actual resignation.

26-12-101 was modified in 1994, wilth immediate effect on May 26, 1994.  I couldn't find the 1994 session laws on line, but I would not be surprised if 26-12-101(C) was added which permitted a senator with two or more years remaining on their term (eg Boren), to irrevocably state their intent to resign on a future date, before July 1 (eg Boren), to hold the special election on the regular election schedule, with the senator-elect (eg Inhofe) taking office immediately.  This also permitted the special election for Imhofe's house seat to be held on the regular schedule.  It is possible that 26-12-101(B) was also added at this time, which permitted Largent to take office early.

26-12-101(C) abd 26-12-101(D) were removed in the 2002 cleanup and generalized in 26-12-119.

Inhofe's Democrat opponent in the 1994 special election was Rep. Dave McCurdy.  McCurdy apparently did not declare his intent to resign, and his replacement, Republican J.C. Watts, did not take office until January 3, 1995.

Rep.Glenn English resigned in January 1994, but the law at that time provided for an immediate special election.  Frank Lucas won the May special election and took office immediately.  Under current (2014) law, the special election would have been held, but the representative elected in November would be appointed to complete the term.

As to the constitutionality, does the 17th Amendment mean that a "vacancy happens" when the office is actually vacant; or may the governor issue election writs in the certain knowledge that a vacancy will occur.

Regular elections are called all the time in anticipation that the term of office of the existing officeholder will terminate on a date certain.  So what is the practical difference of holding the election prior to the actual vacancy?

[TTS1996]

Tom Coburn said back in January that he would retire from Congress, due to medical reasons, at the end of this year and not finish out his term.  Therefore, somebody has to replace him.  James Lankford, who won the primary in June and will likely be the next Senator from Oklahoma, will be formally elected on November 4 and will be sworn-in in January when the new Congress is sworn-in.  Oklahoma can't afford to wait until Coburn officially leaves Congress to start the campaign process.  Jim Inhofe, who is also up for re-election this year, should not serve Oklahoma by himself.  In no way is it wrong, it is just procedural after a member of Congress announces his resignation.

I warned I would come back to this - and here I am! I agree OK couldn't do with just 1 senator - so OK should do what almost every other state does; have the Governor appoint a replacement next January upon Coborn resigning from the Senate, and only upon his resignation, pending a special election in 2016 - an election process which is triggered on the date of the resignation, and not before.

I agree that it would be wrong were it possible for Coburn to rescind his letter of resignation, but it's not, so I don't think there's a problem.

No, it's wrong even if he can't rescind his letter of resignation. He is still there; hence the machinery to fill his vacancy should not be rolling, as there's no vacancy yet.

NB. Neither of these responses are a hit at you who have responded - it's a hit at proper and due process being subverted.


TL;DR: Oklahoma's machinery for filling Senate vacancies is bloody ridiculous and needs to be overhauled.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I agree that it would be wrong were it possible for Coburn to rescind his letter of resignation, but it's not, so I don't think there's a problem.

No, it's wrong even if he can't rescind his letter of resignation. He is still there; hence the machinery to fill his vacancy should not be rolling, as there's no vacancy yet.

Out of curiosity, do you feel the same way about the fact that general elections occur two months before the end of a Congress, during which months the old Congress is usually still getting some work done?

[jimrtex]

TL;DR: Oklahoma's machinery for filling Senate vacancies is bloody ridiculous and needs to be overhauled.

Do you prefer the process used in Blagobama, where the Blagobamian governor sold the appointment rights, and then there had to be a lawsuit to get Blagobama to hold a special election for the final month and half of the senate term?

What is ridiculous about holding elections on the regular schedule of elections when you will be electing representatives, and legislators, and local officials?

[TTS1996]

I agree that it would be wrong were it possible for Coburn to rescind his letter of resignation, but it's not, so I don't think there's a problem.

No, it's wrong even if he can't rescind his letter of resignation. He is still there; hence the machinery to fill his vacancy should not be rolling, as there's no vacancy yet.

Out of curiosity, do you feel the same way about the fact that general elections occur two months before the end of a Congress, during which months the old Congress is usually still getting some work done?

In a way, yes I do, I feel a general election should come after the term of the outgoing senators/representatives/etc has ended, and before the new term begins. An Anglosphere thing, I guess.

But this is a diversion as we are not talking about a general election but a special election, and I feel the election to select Coburn's successor should not begin until Coburn resigns. Which he hasn't. Special elections, even in the US, do not come 2 months before the vacancies arise.

TL;DR: Oklahoma's machinery for filling Senate vacancies is bloody ridiculous and needs to be overhauled.

Do you prefer the process used in Blagobama, where the Blagobamian governor sold the appointment rights, and then there had to be a lawsuit to get Blagobama to hold a special election for the final month and half of the senate term?

What is ridiculous about holding elections on the regular schedule of elections when you will be electing representatives, and legislators, and local officials?

I take it you mean Illinois - in which case (a) the laughably blatant corruption of the Cook Co Democrat machinery has nothing to do with it;

(b) I don't see any point in appointing a senator then having a special election in November (say) 2014 to fill up any unexpired term from November 2014 to January 2015 rather than letting the appointee close out the term and

(c) there is nothing ridiculous about holding elections on the regular schedule of elections, just in holding an election for a position that isn't vacant. What I mean is, the vacancy for Coburn's seat comes up in 2015 and should not therefore be fought on regular election day 2014, it should be fought at the next election day in 2016.

I just think that if Coburn wants to retire on 3 January 2015, the OK Governor should wait and appoint someone to the seat on 3 January and (dependent on whether state law allows differently, like in MA) the appointee should serve until the regular election in November 2016. Had Coburn not been up for election in 2016, I'd have backed the MA procedure.

But this is all irrelevant to the simple fact that an election should not be held for a position that is not vacant, as the Class III seat in OK is not vacant. Why is this so hard?

[muon2]

TTS, technically in the US all regular elections fill seats before they are vacant. Normally when an official announces that they will not run again, the election takes place while the previous office holder is in place, and the successor only take the office at a later preset date. By creating a mechanism that allows for a special election to be handled by binding resignation, a process is created that acts in all respects like a normal election when an incumbent has indicated their intent to retire.

The benefit is to the public; they are able to act on a midterm retirement in the same manner as an end-of-term retirement. The US public is used to elections falling only on specific days of the year and the turnout reflects this ingrained sense of election days. Since public awareness and turnout are best on the regularly scheduled election day, having a midterm resignation filled as if it were the end of the term provides for an election with the most public participation.