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Replacing Senator Kennedy

// Published August 25, 2009 in New York Times
Senator Edward M. Kennedy has asked the Massachusetts Legislature to change state law to let the governor, currently a fellow Democrat, fill vacant Senate seats. Abandoning the current system, in which voters choose, would be undemocratic, even at the request of such a respected lawmaker.

With the health care battle heating up in Washington, every senator’s vote is critical. It is not hard to imagine that Mr. Kennedy, who has made national health care a high priority, wants to make sure Democrats will not lose a vote if he is unable to keep serving because of his terminal brain cancer. Under current law, an empty Senate seat can be filled only by special election, which could leave the seat open for more than five months.

Massachusetts governors used to fill Senate vacancies. But in 2004, the Democratic majority in the State Legislature changed the law to require a special election. The leaders were concerned that if Senator John Kerry was elected president, Gov. Mitt Romney would appoint a fellow Republican. To change back now would look like an unseemly amount of partisanship in setting the rules for who goes to Congress.

Special elections put the power where it should be in a democracy — with the people. Too many senators today are selected in elections of one, with the governor casting the only vote. New York just went through this in filling Hillary Clinton’s seat, Delaware in filling Joe Biden’s seat, and Illinois in the disastrous process of filling Barack Obama’s seat, which contributed to the impeachment of Gov. Rod Blagojevich.

According to FairVote, a voting-rights group, if and when the governors of Florida and Texas fill impending vacancies in those states, almost 27 percent of the population will be represented by at least one unelected senator. Once someone is appointed, he or she has an enormous leg up in the next election.

The best solution would be to amend the Constitution to require that all Senate vacancies be filled by election. Senator Russ Feingold, Democrat of Wisconsin, has a proposal, which has bipartisan support, to do that.

To his credit, Mr. Kennedy has suggested that the Massachusetts governor should appoint only someone who makes a personal commitment not to be a candidate in the special election. That would reduce the antidemocratic impact of the appointment, but it would not eliminate it.

It might be possible for Massachusetts to shorten the campaign, so a new senator could be elected more quickly. But states should be moving away from gubernatorial appointment of senators, not toward it.