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Issues & Analysis The Problem 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.
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. Hawaii's Law 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. Background 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).
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.
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. Cost 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:
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. | ||||||||||||||||||||||||||||||||||||||||||||||||
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A Powerful Governor Hawaii's constitution makes our Governor one of the most powerful in the nation with respect to veto power and appointive power. Our Governor not only fills legislative vacancies, but all executive branch positions (except for the Lt. Governor), and appoints State Supreme Court, Intermediate Court, and Circuit Court judges (though the selection of judges is limited to the list provided by the Judicial Selection Commission). This raises questions about how much power the chief executive ought to have, as well as whether the checks and balances between the three branches of government inherent in our system are being jeopardized because the Governor not only appoints judges, but also legislators (including members of the Senate who confirm the judicial appointments). Abuse of Power Another criticism emphasizes the high risk of "cronyism" and the possibility that a governor could use the power of appointment to remove difficult legislators to other posts and then replace them with "friendly" legislators. Although this concern did surface recently in Hawaii, it cannot really be substantiated in Governor Waihee's case. He only named two legislators to administrative posts and three of his appointments were made placing Representatives in the Senate (thus not "removing" them from the Legislature). Would it be really rational to move a "troublesome" legislator from that body to the executive branch? Further study would be needed of the relationship between Waihee, the persons he appointed, and his influence on their legislative records, to substantiate such claims. One worry which recently surfaced focuses on the fact that our legislators are part-time and may easily be tempted to leave for full-time administrative positions with the attendant increased salary and retirement benefits. Clearly, one could not constitutionally bar legislators from accepting administrative posts or leaving midsession for any other reason. The Will of the People The most powerful argument in favor of a special election method is that an election ensures that the will of the people determines who represents them. Quite clearly, with the appointive procedure, a district is represented by someone not chosen "by the people" in the election process so fundamental to our representative democracy. Adding fuel to the fire in Hawaii's recent history was the fact that two of the appointees had actually lost elections. In one case the replacement was a defeated incumbent, while the other had lost an election to the Honolulu City Council. Both defeats occurred in the election immediately prior to their appointment. Length of Legislative Terms An additional consideration is that because, in Hawaii, Representatives serve two-year terms, we need to take into account this short time span as well as when the vacancy occurs when considering the appointive versus the elective method of filling vacancies. Should there be an election if the vacancy occurs during the first year, but an appointment during the second (and last) year of the term? Should election take place regardless of when the vacancy occurs? What about Senators? They serve four-year terms. According to present law a replacement will be appointed if the term ends at the next general election but will be elected if the current term does not end with the next general election. What this means is that if a Senator vacates a seat at any time during the last two years of the term, the replacement will be appointed. If the vacancy occurs during the first two years, there will be a temporary appointee who serves until a replacement is elected at the next regularly scheduled general election. Should a special election take place regardless of when in the four-year term a vacancy occurs? Should there be a combination of appointment and election? Incumbency Factor Incumbency has always been considered an advantage in any election campaign. Therefore, an argument may be made that an appointee is given an unfair advantage of incumbency without ever having stood for election. Of the 16 midterm legislative appointees appointed by Governors Bums and Ariyoshi, 10 were "reelected," 1 lost, and 5 chose not to run. It will be interesting to see what happens to Governor Waihee's appointees in the 1988 elections. However, the nationwide study of legislative vacancies discussed earlier adds the contrasting suggestion that voters may actually rebel against an appointed legislator when the next general election comes around. It was found that while 95% of the special election winners are re-elected, only about 80% of the appointees are successful.6 The study also demonstrated that appointees are three times as likely as the special election winners not to run for re-election. This may also indicate less grass roots support for appointees who seek to keep their office than for candidates who have already made themselves familiar through the special election process. Political Party Balance There is another interesting factor to consider here. Since Hawaii law requires that the replacement legislator be of the same party as the one vacating the seat, it is possible that legislators may be more inclined to leave in midsession when they have the assurance that their replacement will be of the same party, thus maintaining continuation of party strength in the legislative chamber. When vacancies are filled by special election, on the other hand, there is a risk of a change in the party holding the seat. Under an elective method a "departing" legislator may receive party pressure not to resign while there might not be such pressure under an appointive system. Information is not available on the rate of party turnover in legislative seats in states which fill vacancies by the special election process. However, a study of U.S. House vacancies found that approximately 21% of the time the party which had held the seat lost out in a special election.7 Is continuation of the partisan ratio between general elections an important consideration? Senators Mary George and Bert Kobayashi, who were interviewed about the vacancy legislation they introduced, both felt that, for persons leaving in midterm, personal factors outweigh party and political considerations. In fact, the bill introduced by Senator George, a Republican, called for replacement by special election. This is noteworthy, considering that Republicans have the most to lose in this predominantly Democratic state if they are not guaranteed legislative replacement from their own party. Political Party Involvement As noted earlier, many states give the political parties an active role in filling a midterm vacancy. Except when anyone can run in a general election, it is the political party which nominates candidates for election. In most states using the appointive method, the party either gives the Governor a list to choose from or makes the appointment itself. Some feel that if the Governor must select from a list provided by the political parties, it reduces the chance that a crony, or an individual the party could not work with, will be appointed. Appointment by the party itself would also avoid these problems. On the other hand, such a role by the parties does put limitations on the Governor. In addition, there is a tendency for candidates here in Hawaii to run individual campaigns without close ties to their political party. What role should political parties play in filling midterm vacancies in Hawaii? If elections are held, should the parties nominate candidates or should everyone be able to run? If an appointive method is preferred, should the parties have sole responsibility to appoint or should they structure the choices for the Governor? Or, is it best to leave the parties out of the replacement process? Conclusion The foregoing discussion of ways to fill midterm legislative vacancies reflects the complexity of an issue that might, at first glance, appear to be quite simple. Not everyone agrees on the best process for there are powerful positives and powerful negatives to the different methods. Each one of us must carefully weigh the pros and cons to decide whether Hawaii's current system needs change. Endnotes 1 "Tempting Legislators," Editorial, Honolulu Star-Bulletin, January 5,1987,p. A12; A.A. Smyser, "Packing the Legislature?" Honolulu Star-Bulletin, January 1, 1987, p. A10. 2 Keith E. Hamm (Texas A&M) and David M. Olson (U. of North Carolina-Greensboro), "Mid-Session Vacancies in State Legislatures, 1981-1986: Why do Legislators Leave and How Are They Replaced?" Paper prepared for delivery at the Annual Meeting of the Western Political Science Association, San Francisco, CA, March 10-12, 1988, pp. 5-8. 3 National Municipal League, Model State Constitution, 6th ed. New York: 1968. p. 49. 4 Some differences in procedures used are omitted from this table. We have compiled the various methods into broad categories for comparison purposes. 7. Lee Siegelman, "Special Elections to the U.S. House: Some Descriptive Generalizations." Legislative Studies Quarterly, VI, November 1981, pp. 580-82.
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Current National LWV Publications of Interest: Changed Forever, The League of Women Voters and the Equal Rights Amendment.
Recent Publications by the Hawaii LWV on Hawaii Issues: Action for Education I: Alternatives in Public Secondary Education
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