Same-Party Legislative Appointments and the Problem of Party-Switching

For half of the states and almost every territory in the United States, legislative vacancies are filled by some system of temporary appointments rather than by special elections. Most of these systems utilize “same-party” appointments to ensure continuity of representation. But few states have anticipated the problem of state legislators switching parties. Though party-switching is rare, it happens frequently enough that several state supreme courts have already interpreted same-party appointment statutes as applied to party-switchers.

This Article argues for a uniform approach to the problem of party-switchers in same-party appointment systems. First, this Article reviews the current legislative appointment schemes as they operate today and analyzes each statute or constitutional provision to determine how each of them might treat a vacancy caused by a party-switching state legislator, as well as the four state supreme court decisions addressing this question of statutory interpretation. It then argues that the principles underlying same-party appointment systems support statutory amendments to clarify how party-switching state legislators are replaced.