Hawaii law for filling Senate vacancies needs to be fixed

THE ISSUE The illness of a Democratic senator from South Dakota raises the possibility of a Republican being appointed to the spot.

THE brain hemorrhage that struck Sen. Tim Johnson, a Democrat from South Dakota, has raised the possibility of that state's Gov. Michael Rounds appointing a fellow Republican in the event of a vacancy, giving control of the Senate back to the GOP. That could not happen in Hawaii, where the governor must fill a legislative vacancy, including a U.S. Senate spot, with a person from the same party as the predecessor.

Hawaii's law regarding the filling of legislative vacancies is no less flawed, as shown by Gov. Linda Lingle's appointment of Bev Harbin to a vacant state House seat; Harbin was trounced in this year's Democratic primary election. Although never challenged in Hawaii or three other states with similar laws -- Alaska, Arizona and Utah -- it also might be unenforceable, requiring a qualification for senator not included in the U.S. Constitution.

Responding to the Harbin debacle, this year's Democratic Legislature approved a bill that would have required the governor to choose from three prospective appointees selected by leaders of the predecessor's party. Lingle vetoed the bill, noting that the party leaders "are not elected by the public and, as such, are not accountable to them."

Congress has focused more on problems that would arise from a catastrophic terrorist attack that could make it impossible for representatives to reach a quorum in "the people's House," whose members must be elected. Most states require about four months to schedule a special election, although Hawaii needed only half that time to conduct a special election following the 2002 death of Rep. Patsy Mink.

Nothing in the Constitution keeps states from conducting special elections to fill vacancies in the U.S. Senate. Indeed, Oregon and Washington forbid the governor from making interim appointments to the Senate, requiring that any vacancy be filled by special election. Oklahoma allows an interim appointment only if the vacancy occurs after March 1 of an even-numbered year; a permanent replacement is chosen by voters in the following year's general election.

In South Dakota, second-term Gov. Rounds is seen as the most likely Republican to challenge Johnson's re-election in 2008. If a vacancy occurs before then, Rounds would not be the first governor to resign and be appointed to the Senate by the new governor -- formerly the lieutenant governor or secretary of state -- although such opportunism has had its pitfalls.

The issue of how to fill a U.S. Senate vacancy is legitimate, especially considering Hawaii's two senators' age of 82. If a Senate vacancy were to occur during the Lingle administration, she would be foolish to appoint a popular Democrat who would be difficult for Republicans to unseat in subsequent elections.

Lingle and Democratic legislators understandably are at loggerheads on the issue. Oregon, Washington and Oklahoma provide populist models that should be considered.