Filling Midterm Legislative Vacancies in Hawaii
Issues & Analysis
In 1988, ten (13%) of the 76 legislators serving in the Hawaii Legislature were not elected to their seats by the voters of their districts. Instead, they were appointed by Governor John Waihee. Seven were appointed just before or during the 1987 session; the remaining three were appointed prior to the opening of the 1988 session.
I. Where Have All the Legislators Gone?
Hawaii State Legislative Seats Vacated During the 1987-1988 Sessions
Senate Seats Vacated
|Richard Henderson |
(District 1) (R)
Replaced by Robert Herkes
|Joseph Kuroda |
(District 22) (D)
|Named Special Asst. to V.P for UH Relations (BOR appt.) |
Replaced by Rep. Eloise Tungpalan
|W. Buddy Snares |
(District 11) (R)
|Named Dir. of College Relations UHH & WOC (BOR appointment) |
Replaced by Rep. Donna Ikeda*
|Charles Toguchi |
(District 8) (D)
|Named Superintendent of Schools (BOE appointment) |
Replaced by Rep. Jimmy Wong
House Seats Vacated
|Donna Ikeda |
(District 21) (R)*
|Appointed by Gov. Waihee to fill Senate seat of Buddy Snares |
Replaced by Patrick Ribellia*
|Richard Kawakami |
(District 51) (D)
Replaced by Bertha Kawakami
|Ken Kiyabu |
(District 26) (D)
|Appointed by Gov. Waihee to post of Dep. Controller, Dept. of Acctg & Gen Services
Replaced by Les Ihara, Jr.
|Alfred Lardizabal |
(District 50) (D)
|Appointed by Gov. Waihee to post of Dir. of Personnel |
Replaced by Ezra R. Kanoho
|Eloise Tungpalan |
(District 44) (D)
|Appointed by Gov. Waihee to fill Senate seat of Joseph Kuroda |
Replaced by Roland Kotani
|Jimmy Wong |
(District 16) (D)
|Appointed by Gov. Waihee to fill Senate seat of Charles Toguchi |
Replaced by Terrance W.H. Tom
|*Became a Democrat July, 1988
II. Why Legislators Leave Midterm, Nationwide (1981-1986)
Resigned to seek other elective office
100 left while leg. in session, 33 left after session was over.
Resigned to take appointive position
154 left while leg. in session, 28 left after session was over.
145 while leg. in session, 32 after session was over.
Resigned to take private business job
32 left while leg. in session, 8 left after session was over.
40 ( 6.2%)
100 left while leg. in session, 12 left after session was over.
* includes: going back to school, arrested/indicted/convicted of crime, moved out of district, unknown reasons.
Although only seven legislators created vacancies by actually leaving the Legislature in midterm, Governor Waihee filled three empty Senate seats with members of the House thereby increasing his appointment-making potential to ten. (See Table I) Governor Waihee made = midterm legislative appointments during his first two years in office, while Governors Bums and Ariyoshi each made only eight such appointments during their respective twelve year tenures in that office.
As a result of the large number of appointments during a relatively short period of time, the fundamental power of Hawaii's citizens to select their own legislators surfaced as a critical issue. Community members questioned whether seats vacated in midterm should be filled by special election or whether the current method of appointment was appropriate. Others wondered why legislators were leaving their elected positions before their terms were over.
Public concern became evident through "Letters to the Editor" in the major newspapers and two editorials titled "Tempting Legislators with Full-Time Jobs" and "Packing the Legislature?"1
Concern among legislators themselves prompted the introduction of five bills (1987-1988) proposing changes to the method of filling midterm vacancies. Three bills called for the implementation of a special election process and two provided for replacements to be selected by a majority vote of the legislative members of the same party and chamber. Only one bill (proposing a special election process) was reported out of committee; it passed in the Senate but then died in the House Judiciary Committee. Although none of the proposals became law, the message of concern was clear.
Why and How Often do Midterm Vacancies Occur?
A recent study of 89 legislative chambers over the period of 1981-1986 found that 644 vacancies occurred with an average of 215 leaving midterm during every two-year period in the six years studied.2
This same study examined reasons the 644 state legislators quit before completing their term of office with the results shown in Table II.
The data show that most who vacated seats did so while the Legislature was actually in session, rather than leaving after the session was completed (but before their elected term of office had ended). Taking an appointive position (such as with the federal, state or local government; judicial; or to fill a vacancy in the other legislative chamber) is the most frequent reason for leaving in midterm, although by a small margin.
The study indicated that the greater the number of legislators in a chamber, the more vacancies can be expected to occur. Since the size of Hawaii's Legislature is below average, the relatively large number of midsession vacancies experienced during 1987 and 1988 was thus quite unusual even though the individual reasons do conform to patterns seen nationwide.
Article III, section 5 of the Hawaii Constitution reads as follows:
Any vacancy in the legislature shall be filled for the unexpired term in such manner as may be provided by law, or, if no provision be made by law, by appointment by the governor for the unexpired term.
The statutory provisions passed in pursuance of this constitutional mandate can be found in the Hawaii Revised Statutes sections 17-3 and 17-4. They require that:
1. If a seat in the House of Representatives is vacated at any time during the two-year term, the Governor appoints a permanent replacement from the same political party as the departing Representative.*
2. If a Senate seat is vacated during the last two years of the four-year term (i.e., the term ends at the next general election), the Governor appoints a permanent replacement from the same political party as the departing Senator.*
3. If a Senate seat is vacated during the first two years of the four-year term (i.e., the term does not end at the next general election), the Governor appoints a temporary replacement of the same party as the departing Senator.* A permanent replacement for the last two years of the term is elected at a special election held concurrently with the next general election. (See Table III for the fine print in the statute regarding this sort of Senate vacancy)
* The law also stipulates that if the vacating legislator was elected as a "nonpartisan" the Governor must appoint a "nonpartisan" as the replacement.
Until 1963, midterm legislative vacancies were filled by special elections; since then, the Governor has had the power to appoint replacements.
Before Hawaii became a state in 1959, the Territory was governed under the Organic Act which specified that legislative vacancies were to be filled by special elections.
However, when the 1950 Constitutional Convention met to draft a constitution that would eventually be ratified at statehood, the method for filling legislative vacancies was revised to include gubernatorial appointment. It stipulated that:
Any vacancy in the legislature shall be filled for the unexpired term in such manner as may be provided by law, or, if no provision be made by law. by appointment by the governor for the unexpired term. (1950 Constitution, section 5, emphasis added).
Filling vacancies "as provided by law" was recommended by the National Municipal League (now called the National Civic League) in their Model State Constitution in order to "allow flexibility and not encumber the constitution with detailed provisions."3
According to the records of the 1950 ConCon only one delegate questioned why it was necessary to add the condition for gubernatorial appointment because, he stated, it could be assumed the Legislature would act. The ConCon chairman responded that there was no doubt the Legislature would act, but that this provision was just a precaution in case it did not. No other information is available to illuminate the intentions of the delegates.
Indeed, the 1959 Hawaii Legislature did act; a law was passed which, following the provisions of the Organic Act, required special elections as the sole method of filling vacancies.
But then, a few years later, in 1963, a bill was enacted which repealed the special elections mandate and substituted the method for replacement used today, i.e., gubernatorial appointment except under certain circumstances (see section on Hawaii's Law).
III. The Fine Print Regarding Senatorial Vacancies
If the vacating Senator's current term does not end with the next general election and the vacancy occurs:
a) at least 10 days prior to the close of filing for the next succeeding Primary Election, the vacancy is filled by a temporary appointment by the Governor until the next election.
b) less than 10 days prior to the close of filing but not later than 30 days prior to the Primary Election, the vacancy is filled by a temporary appointment by the governor and nomination papers shall be taken until 30 days prior to the election (special election held concurrently with the General Election).
c) after 30 days prior to the Primary Election but not later than 30 days prior to the General Election, the vacancy is filled by a temporary appointment by the Governor and shall be filled at the General Election with appropriate party committees to name each party candidate and nonpartisan candidates to submit nomination papers.
d) after 30 days prior to the General Election, or if no candidates are nominated, then the vacancy is filled by an appointment by the Governor for the unexpired term.
Note: All temporary appointees shall be of the same political party or nonpartisanship as the person succeeded.
Section One of the bill stated that its purpose was to provide "the governor with the power to fill vacancies in the state legislature by making temporary appointments, and eliminating the necessity for conducting special elections for this purpose."
In a recent interview with the League, one of the bill's cosponsors, then Senator, later Governor, George Ariyoshi, recalled that there was not much debate on the subject. He remembered that the main argument focused on the expense of a special election compared with filling vacancies by gubernatorial appointment. Since the appointee had to be of the same political party as the person who previously held the seat, the party ratio in the House or Senate would be the same. Ariyoshi also emphasized that before statehood (under the Organic Act), a special election made sense because the Governor at that time was appointed by the President of the United States and not elected by the people. Since 1959, he added, the people have elected the Governor, and therefore, filling vacancies by gubernatorial appointment was logical.
Both the 1968 and 1978 Constitutional Conventions considered the issue of legislative vacancies but made no changes. Their reports cite the Model State Constitution as a basis for keeping the status quo. According to the 1978 ConCon proceedings one delegate did introduce a resolution to change the method of replacement. The proposal deleted the ability of the Governor to make appointments for unexpired terms if no provision is made by law and called for filling legislative vacancies with the person who got the next highest vote in the previous general election, or if none, then in a previous primary election (or if none, as provided by law). The proposal also required the successor to be a member of the same party. This resolution was referred to the Committee on Legislation but went no further.
How Other States Do It - Many Variations on Two Themes
There are two major methods used for filling midterm vacancies: (1) special elections held whenever necessary, according to law and (2) appointment. However, the 50 states have devised an amazing number of variations under these two methods as seen in Table IV.
One conclusion to draw from Table IV is that most states allow local political parties to play a key role in selecting candidates to fill legislative vacancies, regardless of whether the method of selection is appointment or election.
It is also important to recognize that in a few states there is no "requirement to replace the departed legislator if the legislature will not convene before the legislator's term expires ... [while] ... in some states ... the vacancy must be filled by special election irrespective of the length of the legislators term that remains."5
Bills on Vacancies Introduced During the 87-88 Hawaii Legislature
Three of the five bills introduced in 1987 and 1988 proposed changing Hawaii's present system to a special election process. But they differed as to what should be the cut-off date in determining whether to hold a special election or wait to elect a replacement at the next general election. HB 350, introduced by Representative Michael Liu, addressed House vacancies only. SB 869, introduced by Senator Mary George, and SB 1358, introduced by Senator Clayton Hee, both called for special election procedures for House and Senate vacancies. George's bill provided that the Governor appoint an interim replacement until the special election while Hee's bill made no provision for the interim period.
IV. Methods for Filling Midterm Vacancies'
I. Special Election (used in 27 states)
A. Special general election held- anyone can run. (2 states)
B. Political parties (through a convention or by party officials) select candidates who run in a special general election. (9 states)
C. Special party primary election held, followed by a special general election. (16 states)
II. Appointment (used in 21 states)
A. Governor appoints-no legal limits to selection. (3 states)
B. Governor appoints- appointee must be of the same political party as person vacating. (2 states, including Hawaii)
C. Governor appoints - selects from a list prepared by the political party of the person vacating. (4 states, with 1 of those also requiring that the appointee be confirmed by members of the chamber with the vacancy)
D. Local party organization appoints replacement. (12 states, in 1 of those the members of the chamber with the vacancy and the political party concerned elect the replacement) Note: The two remaining states use a combination of appointment and election. An appointment is made; an election follows appointment, depending upon the amount of time left in the resigner's elected term. (Hawaii uses this combination under certain circumstances, see Table III).
The other two bills, HB 2393 and SB 2119, were companion bills introduced by Representative Wayne Metcalf and Senator Bert Kobayashi. Their proposal would alter the current appointive process only where the vacancy occurs when the legislator's term ends at the next general election, in which case legislators "of the same political party as the person vacating the seat, by majority vote, shall make an appointment to fill the vacancy for the unexpired term." If the legislator's term does not end at the next general election, the Governor would temporarily appoint a replacement to serve only until the next general election. Providing for appointment by a majority vote of the legislators of the same political party makes these bills unique. Only two states give legislators a role in filling midterm vacancies. (See Table IV)
Pros and Cons of Different Methods
What is the cost of the different methods? How do you balance the cost against the desirability of voters choosing their own representatives - or against the increased, or appearance of increased clout of an appointing authority? Is speed important in the filling of midterm vacancies? How important is separation of powers and checks and balances? Should political party ratio be maintained between elections? Should voters always elect their legislator regardless of the time left in a term? What role should political parties play?
These are some of the issues which should be kept in mind when evaluating the pros and cons of different methods.
One benefit of the appointive method of replacement is that the dollar cost to taxpayers will be zero. In contrast, elections cost money not only for the taxpayers but for candidates as well. Special elections for filling midterm vacancies in Hawaii are estimated to cost anywhere from $21,000 to $56,000 per district, depending on whether it is a House or Senate seat, whether primary elections are held, and so forth. (See Table V, page 6 for the details.)
If Hawaii statutes required holding special elections to fill all 10 seats made vacant during the 1987 and 1988 legislative sessions, the estimated cost to the taxpayers would have added up as follows:
Special elections for 6 House Seats:
Minimum --- $21,000 x 6 districts = $126,000
Maximum --- $37,000 x 6 districts = $222,000
Special elections for 4 Senate Seats:
Minimum --- $25,000 x 4 districts = $100,000
Maximum --- $56,000 x 4 districts = $224,000
Total cost for 10 special elections:
$226,000 to $446,000.
It should be recalled here that "special elections" to fill vacant seats are required under Hawaii Law, but only when a Senate seat is vacated during the first half of the four-year term. However, these special elections are to be held concurrently with the general election and therefore the cost is much less ($9,000 to $30,000 per district) than it would be to hold a special election by itself.
Filling Midterm Vacancies Quickly
Another benefit of the appointive method is that it insures that a vacant seat can be filled quickly. An election takes time. A reasonable time must be given for candidates to file (or be selected by the political party), ballots to be printed, etc.... If the Legislature is actually in session when the vacancy occurs, an election would result in a considerable period of time when a district is not represented. Where a legislature meets year-round or for much of the year, there may not be quite such an urgency to filling the vacancy. However, in a situation such as Hawaii's where the Legislature meets for 60 day annual sessions, would it be possible to hold special elections in a timely fashion so that a replacement would in fact get to serve? Would it be cost effective?
Of course, special sessions may be called before the Legislature meets again the next year. Also, legislators must carry out "representative" tasks for their constituents even when the entire body is not in session.
But even the appointive method may create time problems as suggested by Representative Mike Liu in a letter of explanation about the bill he introduced:
"My rationale for introducing House Bill 350 was simply due to the fact that the Governor has too much power to appoint State Representatives (and State Senators) when a vacancy occurs early after the general election. Oftentimes, the appointment is not announced until the very last minute. The appointee must not only scramble for staff, clear up any unfinished business and, in some instances, relocate to Oahu for the purposes of serving his or her term at the legislature." (emphasis added)
In other words, there is no guarantee that the Governor (or political party) would make an appointment in a timely fashion.
Separation of Powers & Checks and Balances
One of the major concerns about giving appointment power to a Governor is that it appears contrary to the principle of separation of powers. Some feel such a process results in a Governor with too much power, and in legislators "beholden" to the executive. It should be recognized that under Hawaii's present method, the Governor is constitutionally given the power to fill legislative vacancies, but this power is exercised only upon default by the Legislature. In other words, the constitutional provision allows the Legislature to establish, by statute, alternative procedures. The fact that the Legislature has not, since 1963, done so may suggest acceptance of gubernatorial appointment as the best method for Hawaii.
The arguments involving the separation of powers principle must be thought through carefully especially when we remember that in our system of government, vacant judicial positions are usually filled by executive appointment. All are appointed at the federal level; although some states do elect judges.