House Vacancies Clause

Article I, Section 2, Clause 4:

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Contemplating that vacancies would arise in the House of Representatives from time to time,1 the Framers specified in Section 2, Clause 4, of Article I that the “Executive Authority” of an affected state fill such vacancies through elections.2 The House Vacancy Clause, however, gives states discretion over the particulars of such elections, allowing them to tailor their procedures, including the timing of elections, to their circumstances.3 In his Commentaries on the Constitution of the United States, Justice Joseph Story spoke approvingly of the flexibility the House Vacancy Clause provides states in managing their elections to fill vacancies. He commented: “The provision . . . has the strong recommendation of public convenience, and facile adaptation to the particular local circumstances of each state. Any general regulation would have worked with some inequality.” 4 Perhaps because of this, adoption of the House Vacancy Clause at the Constitutional Convention appears to have been unexceptional.5

More controversial, however, has been whether the Framers intended for Member resignations to trigger the House Vacancy Clause.6 While the Framers considered versions of the House Vacancy Clause that referred expressly to resignations,7 the final language of the House Vacancy Clause did not address resignations or how vacancies might arise.8 In 1791, the House of Representatives confronted the question of whether Member resignations triggered the Vacancy Clause when Rep. William Pinkney of Maryland resigned from Congress and the State of Maryland sought to replace him with John Francis Mercer.9 While the House Committee on Elections supported Mercer taking Pinkney’s seat, Rep. William Giles of Virginia objected because “a resignation [does] not constitute a vacancy” and the British House of Commons did not permit resignations.10 Other Members reasoned, however, that prohibiting resignations would be inconvenient, especially “in cases of sickness or embarrassment” ; there was no reason to distinguish the House from the Senate, for which the Constitution expressly contemplated resignations; and British House of Commons practice on resignations was not applicable to Congress.11 Ultimately, the House found Mercer could replace Pinkney. Subsequent Member resignations and replacements do not appear to have faced serious challenge,12 and resignations from the House for a wide range of reasons are routine.13

The Constitution treats vacancies in the House and the Senate differently. While the Seventeenth Amendment’s Senate Vacancy Clause mirrors the House Vacancy Clause by requiring an affected state’s Executive Authority to issue a writ of election to fill a vacancy,14 the Seventeenth Amendment also empowers states to permit the Executive Authority to fill Senate vacancies temporarily pending an election. In contrast, the House Vacancy Clause does not contemplate state Executive Authorities filling House vacancies temporarily.15

1: See, e.g., 2 The Records of the Federal Convention of 1787, at 140 (Max Farrand ed., 1911).
2: U.S. Const. art. I, § 2, cl. 4. A “writ of election” is a written order, in this case issued by the executive authority of the state, to hold a special election. Today the “executive authority” of a state is generally considered to be the state’s governor. The Framers’ use of the term “executive authority” reflected that early state constitutions often provided for an executive council to control or advise the state’s chief executive. Charles C. Thach, Jr., The Creation of the Presidency, 1775–1789: A Study in Constitutional History 16–17 & n.7 (1923).
3: Act of February 2, 1872, ch. 11, § 4, 17 Stat. 28, codified at 2 U.S.C. § 8(a), provides that state law may govern the timing of elections to fill vacancies in the House of Representatives. After September 11, 2001, Congress provided time frames for states to hold elections if House vacancies exceed 100. 2 U.S.C. § 8(b). See Thomas Neale, Cong. Rsch. Serv., IF11722, House of Representatives Vacancies: How Are They Filled? (2021), https://crsreports.congress.gov/product/pdf/IF/IF11722.
4: Joseph Story, Commentaries on the Constitution of the United States § 683 (1833).
5: Id. ( “The propriety of adopting this clause does not seem to have furnished any matter of discussion either in, or out of the convention.” ).
6: Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177 (2008).
7: 2 The Records of the Federal Convention of 1787, at 140 (Max Farrand ed., 1911) (considering text providing that “[v]acancies by death disability or resignation shall be supplied . . . .” ); id. at 227 (considering text referencing “vacancies happening by refusals to accept resignations or otherwise . . . .” ).
8: U.S. Const. art. I, § 2, cl. 4. By comparison, the Senate Vacancy Clause contemplated vacancies arising from resignations. U.S. Const. art. I, § 3, cl. 2 ( “if Vacancies happen by Resignation, or otherwise . . . .” ). One commentator has suggested that Senators were expected to resign if they refused to follow their state legislature’s instructions. Chafetz, supra note 6, at 214. Early in U.S. history, Senators debated the the extent to which they were expected to comply with their state legislatures’ instructions. David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801 15 & n.66 (1997). Unlike the Articles of Confederation, which provided states a right to recall delegates from Congress, the Constitution did not provide states a right to recall Senators. Compare Articles of Confederation art. V, § 5 with U.S. Const. art. I, § 3. In 1913, the Seventeenth Amendment superseded the Senate Vacancies Clause set forth at Article I, Section 3, Clause 2. Unlike Article I, Section 3, Clause 2, the Seventeenth Amendment does not refer to resignations and instead tracks the House Vacancy Clause language. It states: “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.” U.S. Const. amend. XVII.
9: Rep. Pinkney resigned prior to taking the oath of office.
10: 3 Annals of the House of Representatives 205–07 (Nov. 22, 1791), reprinted in 2 The Founder’s Constitution 146–47 (Philip B. Kurland & Ralph Lerner eds., 1987).
11: Id.
12: 3 Annals of the House of Representatives 207 (Nov. 23, 1791), reprinted in 2 The Founder’s Constitution 147 (Philip B. Kurland & Ralph Lerner eds., 1987). See also Chafetz, supra note 6. Chaftez notes that Congress passed a law that “allows states to set the time for filling House vacancies ‘whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected.’” See also Chafetz, supra note 6, at 224 (citing the Apportionment Act of 1872, ch. 11, § 4, 17 Stat. 28, 29, codified at 2 U.S.C. § 8(a)).
13: See, e.g., Neale, supra note 3; Chafetz, supra note 6, at 179.
14: U.S. Const. amend. XVII ( “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” ). See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 896 (1995) (Thomas, J., dissenting) (noting that art. I, § 2, cl. 4 and art. I, § 3, cl. 3 provide for state Executives to issue writs of election to fill vacancies).
15: U.S. Const. amend. XVII ( “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.” ).