Continuity of Congress: Special Elections

The Constitution prescribes different methods for filling vacancies in the House of Representatives and the Senate. In the Senate, the 17th Amendment gives state legislatures the ability to empower their governors to make temporary appointments to fill vacancies until a special election is held. In the House of Representatives, Article I, section 4 specifies "when vacancies happen in the Representation from any state the executive authority thereof shall issue Writs of Election to fill such vacancies." No provision is made for temporary appointments. Vacancies are filled by special election only. It is a matter of pride among many members of the House that no member has ever served on the floor of the House who has not been elected.

There is great variety among the laws of the states regarding special elections. Some states dispense with primaries. Some states allow the governor to determine the timing of the election. The decision of when to have a special election or whether to have it at all often depends on the timing of the vacancy relative to the end of the term. Because of all of these factors, the time it takes to fill vacancies varies widely. For the past twenty years, the average length of time for filling a vacancy in the House of Representatives is approximately four months.

The minimum time necessary for holding a special election is approximately forty-five days, but such a timeframe would undoubtedly require foregoing a primary and simplifying and expediting ballot access rules. Some have also suggested that expedited elections favor candidates who are famous, wealthy, or well-connected because only these candidates could mount such a quick election campaign.