Replacement for Sen. Thomas does not have to be Republican

Is Governor Freudenthal (D-WY) actually required to pick a Republican to replace Sen. Craig Thomas (R-WY)?

State law says so, but it may violate the U.S. Constitution.

Update: The opinions expressed in this diary have been backed up independently by University of California law professor Vikram David Amar writing for findlaw.com.  Professor Amar is also a former clerk to Justice Harry Blackmun.

The Seventeenth Amendment states, "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."

The U.S. Constitution thus gives the power to appoint exclusively to the "executive" of the state.  It is unconstitutional for state law to restrict the governor's choice.  The legislature cannot do the appointing itself, nor can it designate another party to make the choice for the governor.  The legislature can only choose to grant this power or not; they cannot restrict the power to appoint.

Continue reading to see a suggested letter to Governor Freudenthal.

Only five states have such restrictions in their laws.  Until now, these restrictions have not been tested by having a senator of one of these states die while the governor is of the opposite political party.

Please consider sending the following letter to Governor Freudenthal. You might also ask the Wyoming Democratic Party to sue if the Governor deprives the Party of equal consideration under the law for their candidates for the appointment. Go to
http://governor.wy.gov/...
to tell the governor about this constitutional issue. You might say something like this:

In this sad time of the passing of Sen. Thomas, I ask you to consider carefully your duty under the Seventeenth Amendment to the U.S. Constitution.  Please do not consider your choices for appointing a replacement to be limited to the list produced by the State Central Committee, as the state law violates the U.S. Constitution.

The Seventeenth Amendment states, "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."

The U.S. Constitution thus gives the power to appoint exclusively to the "executive" of the state.  It is unconstitutional for state law to restrict the governor's choice.  The legislature cannot do the appointing itself, nor can it designate another party to make the choice for the governor.  The legislature can only choose to grant this power or not; they cannot restrict the power to appoint.

Please exercise your constitutional power to appoint the best person for the job, an independent-minded individual like yourself, without regard for the list provided by the State Central Committee.

Whether you pick a Republican, Democrat, or independent, I believe it is important that you protect the literal text of the Seventeenth Amendment by making your own choice.