The Legal History of State Legislative Vacancies and Temporary Appointments

We love paying attention to special elections. They operate as catharsis for opposition parties and activists, easily serve as proxies for how well the governing party is doing, and are ripe for over-extrapolation by prognosticators. But in thirty states and territories throughout the United States, state legislative vacancies are filled by a combination of special elections and temporary appointments. These appointment systems are rarely studied or discussed in academic literature but have a fascinating legal history that dates back to pre-Revolutionary America. They have substantially changed in the last four centuries, transitioning from a system that, like the Electoral College, was built on putting a buffer between voters and the government, to a system rooted in Progressive Era ideals. Telling their history—how they were adopted, how they have changed over time, and how they operate today—strengthens our understandings of anti-democratic institutions in the nineteenth century and of how progressive reforms work together. But their history also speaks volumes about how they, and the Seventeenth Amendment, should be interpreted and understood today. This Article tells their story