Updates:
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Hawaii’s senior U.S. Senator, Daniel K. Inouye died today. We can’t add much to the remembrances pouring in about this war hero, trailblazer, and political icon, so we’ll just address what we know, the law regarding how the vacancy in the U.S. Senate will be filled. Mark Murakami and I did some quick research, and here is what we came up with.
The starting point is the Seventeenth Amendment to the U.S. Constitution, which provides, in relevant part:
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.
The “executive authority” under the Hawaii Constitition (article V, § 1) is the Governor. The Hawaii legislature has empowered the Governor to make a temporary appointment to flll the office in Haw. Rev. Stat § 17-1, as follows.
§ 17-1. United States senator.
When a vacancy occurs in the officeof United States senator, the vacancy shall be filled for the unexpired term atthe following state general election; provided that the vacancy occurs notlater than 4:30 p.m. on the sixtieth day prior to the primary for nominatingcandidates to be voted for at the election; otherwise at the state generalelection next following. The chief election officer shall issue a proclamationdesignating the election for filling the vacancy. Pending the election, thegovernor shall make a temporary appointment to fill the vacancy by selecting aperson from a list of three prospective appointees submitted by the samepolitical party as the prior incumbent. The appointee shall serve until theelection and qualification of the person duly elected to fill the vacancy andshall be, at the time of appointment, and shall have been, for at least sixmonths immediately prior to the appointment, a member of the same politicalparty as the prior incumbent. The appointee shall be a resident of the state.If the prior incumbent was not a member of any political party, the governorshall appoint a person who is not and has not been, for at least six monthsimmediately prior to the appointment, a member of any political party. Allcandidates for the unexpired term shall be nominated and elected in accordancewith this title.
So, the next step is for the Chief ElectionOfficer, Scott Nago, to issue a proclamation designating the election for filling thevacancy, presumably the General Election in 2014. But, it would be only for theunexpired term of Senator Inouye whose term was going to expire in 2016. Senator Inouye was a Democrat, so afterMr. Nago makes the proclamation, the Democratic Party of the State of Hawaii must provide a listof three prospective appointees for the appointment, and Governor Abercrombie must selectthe new temporary senator.
If the Governor picks a sitting member of theU.S. House of Representatives, pursuant to art. 1 of the U.S. Constitution and Haw.Rev. Stat. § 17-2, a special election is required to fill that vacancy.
If the Governor picks himself to fill the Inouye seat, then theHawaii Lieutenant Governor would become the Governor under Hawaii State Constitution art. V, section 4, and, by operation of Haw. Rev. Stat. § 26-2, the SenatePresident would become the Lieutenant Governor.
But putting aside the question of whether he should, can Governor Abercrombie appoint himself? Under the Hawaii State Constitution, “[t]heGovernor shall not hold any other office or employment or profit under theState or the United States during the governor’s term of office.” Art. V,Section 1. That language would make it tough to do directly.