California Legislative Counsel Legal Opinion Disputes Constitutionality of Alex Padilla Appointment Without Election

Following California Governor Gavin Newsom’s December 22nd appointment of Alex Padilla to the U.S. Senate, State Assemblyman Kevin Kiley (R-Granite Bay) warned that there are legal issues with Newsom’s appointment as the Constitution requires an election.

Kiley obtained a Legal Opinion from the Office of the Legislative Counsel (below) confirming this is a Constitutional problem, and something he has also already shared with Governor Newsom.

As Kiley explained, the Legislative Counsel’s Office concluded in a 10-page written response (below):

• That “the Seventeenth Amendment requires the Governor to issue a writ of election” to fill the vacancy that will be created by Senator Harris’ resignation.
• That the Seventeenth Amendment requires that “the person elected in the vacancy election takes office before the end of the existing term.”

In addition, the Legislative Counsel opinion finds:

• That “existing case law casts doubt on the validity of the second sentence of section 10720” of the California Elections Code.

As to the last finding, Section 10720 is what gives a California Governor the power to temporarily fill a vacant Senate seat. Below is the text, with the likely unconstitutional second sentence highlighted by Kiley:

If a vacancy occurs in the representation of this state in the Senate of the United States, the Governor may appoint and commission an elector of this state who possesses the qualifications for the office to fill the vacancy until his or her successor is elected and qualifies and is admitted to his or her seat by the United States Senate. However, whenever a vacancy occurs within a term fixed by law to expire on the third day of January following the next general election, the person so appointed shall hold office for the remainder of the unexpired term unless the vacancy is filled at a special election held prior to the general election, in which case the person elected at the special election shall hold office for the remainder of the unexpired term. An election to fill a vacancy in the term of a United States Senator shall be held at the general election next succeeding the occurrence of the vacancy or at any special election.

Kiley followed up with a letter (below) to U.S. Senate Majority Leader Mitch McConnell and Minority Leader Charles Schumer, explaining the legal opinion by the State of California Office of the Legislative Counsel:

“The California Office of the Legislative Counsel has concluded that the Seventeenth Amendment to the U.S. Constitution ‘requires the Governor to issue a writ of election’ to fill the vacancy created by Senator Harris’ resignation and requires that ‘the person elected in the vacancy election takes office before the end of the existing term.'”

“This finding is inconsistent with the Governor’s statement that Padilla will “fill[] the term being vacated” by Senator Harris. Furthermore, while the Governor’s statutory authority to make an appointment comes from California Elections Code 10720, the Legislative Counsel opinion finds that ‘existing case law casts doubt on the validity of the second sentence’ of that section. Pursuant to that second sentence, Mr. Padilla would serve the remainder of Senator Harris’ term in the absence of a Special Election. If a Court were to agree that the sentence is unconstitutional while also holding that it is not severable – that is, if a court finds that the unconstitutionality of that provision also invalidates the statute’s other two sentences – then the Governor of California would have no authority to appoint a United States Senator.”

“Article 1, Section 5 of the U.S. Constitution authorizes each house of Congress to ‘be the Judge of the Elections, Returns and Qualifications of its own Members.’ If Governor Newsom proceeds with the appointment of Mr. Padilla as planned, the Senate may wish to consider whether the legal issues relating to the appointment raised by the Legislative Counsel Opinion require resolution before Mr. Padilla is seated.”

Notably, Sen. Kamala Harris has not yet resigned her U.S. Senate seat.

As Assemblyman Kiley said in a press statement Tuesday, “Deeming the second sentence unconstitutional has two implications:

1) If Alex Padilla takes office as Gov. Newsom’s appointee, he could not serve the entire remainder of Senator’ Harris term without being elected to do so. This election would need to be separate from the regularly scheduled 2022 election for the next full Senate term.

2) If a Court were to find that the second sentence is not severable — that is, if a court finds that the unconstitutionality of that provision also invalidates the statute’s other two sentences — then the Governor of California would have no authority to appoint a United States Senator. (The Legislative Counsel opinion concludes a court would “likely find it to be severable.”)

Assemblyman Kiley has written a letter to Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer advising that the Senate may wish to consider whether the legal issues relating to the appointment raised by the Legislative Counsel Opinion require resolution before Mr. Padilla is seated.”

Read Kiley’s account on his blog HERE.