According to his official website, California Gov. Gavin Newsom on October 1 appointed Laphonza Butler to the Senate, to complete the term of the late Sen. Dianne Feinstein. Butler was apparently a Maryland resident as of very recently, but according to Newsom’s office she plans to re-register to vote in California before her Wednesday swearing-in.
For various reasons, though, that might not be enough, and the Senate will have a real constitutional question to face. As far as I can tell—and I’d be happy to be corrected—if Butler hasn’t traveled back to her home in California since deciding to take the job, and if Newsom doesn’t wait until she does to make (or re-make) the appointment, she can’t represent California, and the Senate can’t seat her yet.
(NB: This isn’t my area of expertise; I usually just listen to Josh Chafetz on most questions of Congress’s procedure and structure. But I’ve been working on a paper on the Twelfth and Seventeenth Amendments, which is why these questions came to mind. Also, nothing in what follows turns—or should turn—on one’s political agreement or disagreement with either Newsom or Butler.)
Why would Butler’s residence matter? The Constitution establishes the following qualifications for Senators in Art. I, § 3, cl. 3:
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Until recently, Butler wasn’t an inhabitant of California. She lived there much of her life and apparently still owns a home there. But since then she moved to Maryland, where she made political donations and worked for a political committee.
Newsom’s office has suggested that it’ll be enough for Butler to re-register to vote in California before being sworn in on Wednesday. And there’s precedent of a kind: Dick Cheney reestablished his Wyoming residence when running for Vice President with his otherwise-fellow-Texan George W. Bush.
But the comparison isn’t quite right. There’s no flat bar on two Texans sharing a presidential ticket; the problem in 2000 was only that the Texas electors, under the Twelfth Amendment, had to vote for at least one candidate who “shall not be an inhabitant of the same state with themselves.” Cheney, who re-registered in July 2000, could have changed his residence any time before the electoral college assembled in December.
By contrast, Article I looks to a senator’s residence “when elected,” and not when sworn in. Swearing-in might be the right time for measuring age and citizenship, but not residence. For example, one 29-year-old simply waited for his thirtieth birthday before appearing in the Senate and presenting his credentials. Yet the residence requirement comes with an explicit timestamp: if the candidate isn’t an inhabitant “when elected,” she isn’t eligible to serve afterwards.
But isn’t Butler being appointed, not elected? That’s only partly right. Under the Seventeenth Amendment, the senators from each state are “elected by the people thereof,” with the following exception:
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: 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.
That’s what’s happening here: California’s legislature has allowed its governor to make a “temporary appointment,” which will last until the next election. But that doesn’t mean the residence requirement applies only to senators chosen by the people at large (or, say, that Newsom could choose to appoint somebody from Alaska or New York instead). The phrase “when elected” is broader than that, because it was adopted as part of the 1788 Constitution, when each state’s senators were “chosen by the Legislature thereof” (Art. I, § 3, cl. 1), usually one legislative house at a time. So “elected” here means a whole process of official choice, not only some first-past-the-post vote by the general citizenry. And the 1788 Constitution also provided for executive appointments, in Art. I, § 3, cl. 2:
[I]f Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
The Seventeenth Amendment was adopted “in lieu of” the “chosen by the Legislature” requirement, as well as “so much of paragraph two of the same section as relates to the filling of vacancies.” But it left the qualification requirements in Clause 3 intact. So the “when elected” requirement is still good law, and its most natural reading would include whatever form of official choice establishes a person as a putative senator. If Newsom already signed the paperwork on Oct. 1, and if Butler were still a Maryland resident at the time, those papers are no good, and he has to sign new ones after she actually establishes California residence.
But isn’t Butler going to be a California inhabitant by Wednesday anyway? Not necessarily. Article I requires that she be an “inhabitant” of California when elected. My understanding is that this requirement is coextensive to the Fourteenth Amendment’s requirement that one “reside” in California to be a California citizen. To establish that particular kind of ongoing residence, also known as “domicile,” traditionally requires that one be present at one’s new home and have the intention of remaining there. (Representing the state in the Senate would of course be a legally acceptable reason for then leaving again.) Given that Sen. Feinstein passed away only on Sept. 29, it’s unclear whether Butler will have actually returned to her California domicile sometime between the point at which she formed the intention to become a Californian again and the point at which Gov. Newsom would appoint her (or re-appoint her).
Moreover, the Senate might be legitimately unsure that there’s a bona fide intention to return to California. While registering to vote is evidence of such an intention, and while plenty of people are willing to move states for a job (especially for a job like this!), residence is often the subject of a good deal of litigation—e.g., when it matters for tax purposes. It might be relevant, for example, whether Butler has been making any other arrangements reflecting her present intention to return to California full-time if not reelected (or if not seeking reelection) in 2024.
But isn’t this all up to the courts to decide? No. Under Art. I, § 5, cl. 1., “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” That means the Senate is the final tribunal to decide when Butler is eligible to serve. In Powell v. McCormack, the Supreme Court claimed the power to require a House of Congress to seat a member excluded for reasons other than the constitutionally listed qualifications. But here the Senate would be judging Butler’s residence under Clause 3, and not (as in Powell) issues unrelated to her constitutional qualifications.
But isn’t this all an insane technicality? Only sort of! For one thing, we should all remember the dictum of the late Judge James Clinkscales Hill, when a lawyer in front of him referred to a rule as a “technicality”:
Counselor, a wise old judge once said to me: “A ‘technicality’ is another word for a rule of law on which you lose. A rule of law on which you win is a ‘cornerstone of justice.'”
When someone is standing with one foot on each side of a border, of course the border looks like a silly technicality. But we draw arbitrary lines, not to govern the cases that go right up to the line, but to make sure that the heartland cases—the ones far away from the lines—are decided correctly. If Newsom had appointed Michigan Gov. Gretchen Whitmer instead, she would obviously have been ineligible, and excluding the obvious cases means having a rule that’s applied to non-obvious cases too.
For another, the Constitution might have had good reason for wanting Senate candidates to be state residents before, rather than after, they’re officially chosen. The Senate is one of the “political safeguards of federalism“; it’s there to make sure that the interests of each state’s residents receive equal representation in one of the national councils. Maybe that’s a bad idea, but it’s clearly the system we have.
Picking someone to represent Californians’ interests who had actually left the state without the intention of returning, and who hadn’t moved back to the state at the time of his or her selection, would arguably interfere with this goal. It might make agreement on abstract political issues, not community fellow-feeling, the governing standard of representation. Maybe that’s a good idea, but it’s clearly not the system we have.
So while Butler and Newsom still have a chance to dot all their i‘s and cross all their t‘s before Wednesday, the Senate will have a real choice before it if they don’t.