Summary Filling Legislative Vacancies

There is tremendous variation among state legislatures in how they fill a vacancy among their membership when it occurs.

In general, the vacancy is filled either through a special election or by appointment, and the states fall evenly into two groups. Twenty-five states fill legislative vacancies through special elections. These elections may be ordered by the governor or other official after being notified of the vacancy. The time limits for the execution of a special election vary as well. The other 25 states fill legislative vacancies through some form of appointment process, whether it be by the political party of the incumbent legislator, a board of county commissioners, the governor, the legislature or members of the same house and party as the incumbent legislator.

In addition to the variance in these laws, the provisions covering them vary as well. The vast majority of states have some provision in the state constitution for the filling of legislative vacancies. Some of these provisions state explicitly how they are to be handled while other simply state that the issue will be subject to provisions of law. In addition to constitutional provisions, most states also provide a more detailed process in statute.

Below you will find all 50 states broken down by the process used for filling legislative vacancies.

Vacancies Filled by Special Election

• Alabama: Ala. Code § 17-15-1
• ^*Arkansas: Ark. Stat. Ann. § 7-11-103; Ark. Cons. Art. 5, § 6
• California: Cal. Elec. Code, § 10700 et.seq.; Cal. Cons. Art. IV, § 2
• Connecticut: Conn. Gen. Stat. § 9-215
• Delaware: Del. Code Ann. tit. 15, § 7101
• Florida: Fla. Stat. § 100.101
• Georgia: Ga. Code § 21-2-544
• Iowa: Iowa Code § 69.14
• Kentucky: Ky. Rev. Stat. § 118.730
• Louisiana: La. Rev. Stat. Ann. § 18:601
• Massachusetts: Mass. Gen. Laws Ann. ch. 54, § 141; Mass. Const. Amend. Art. 24
• Maine: Me. Rev. Stat. Ann. tit. 21-A, § 382; Me. Rev. Stat. Ann. tit. 21-A, § 381
• Michigan: Mich. Const. Art. 5, § 13
• Minnesota: Minn. Cons. Art. 4, § 4; Minn. Stat. § 204B.13
• Mississippi: Miss. Code Ann. § 23-15-851
• Missouri: Mo. Cons. Art. III, §14
• New Hampshire: N.H. Cons. Part II, Articles 16 and 34; N.H. Rev. Stat. Ann. § 661:8
• New York: N.Y. Public Officers Law § 42
• Oklahoma: Okla. Stat. Ann. tit. 26, § 12-106
• Pennsylvania: Pa. Cons. Art. II, §2
• Rhode Island: R.I. Gen. Laws § 17-3-6
• South Carolina: S.C. Const. Art. III, § 25;S.C. Code Ann. § 7-13-190
• Texas: Tex. Elec. Code § 203.001 et. seq.
• Virginia: Va. Code § 24.2-216
• Wisconsin: Wis. Cons. Art. IV, § 14

*State party committees may choose either to hold a special primary election or a convention of party delegates to choose nominees. The governor has the discretion to determine whether special elections to fill certain vacancies are impractical due to timing of the vacancy.

Vacancy Filled by Appointment

Political Party Appoints

• *Colorado: Colo. Const., Art. 5, Sec. 2(3);Colo. Rev. Stat. §1-12-203
• *Illinois: IL Const. Art. 4, Sec. 2(d);Ill. Rev. Stat. ch. 10, § 5/25-6
• Indiana: Ind. Code §3-13-5-0.1
• New Jersey: N.J. Const., Art. IV, Sec. IV(1)
• North Dakota: (7) N.D. Cent. Code §16.1-13-10

Board of County Commissioners Appoints

• *Arizona: Ariz. Rev. Stat. Ann. §41-1202
• Montana: Mont. Const. Art. 5, Sec 7;Mont. Code Ann. §5-2-402
• *Nevada: Nev. Const. Art. 4, Sec. 12
• New Mexico: N.M. Const. Art. 4, Sec. 4
• *Oregon: Or. Rev. Stat. §171.051
• Tennessee: Tenn. Code Ann. § 2-14-203; Tenn. Code Ann. § 2-14-203
• Washington: Wash. Const. Art. 2, Sec. 15, as amended by Amendment 52
• Wyoming: Wyo. Const. Art. 3, Sec. 51;Wyo. Stat., §22-18-111(a)(iii)

Governor Appoints

• *Alaska: Alaska Const. Art. 2, Sec. 4;Alaska Stat. §15.40.320
• *Hawaii: Hawaii Const. Art. 3, Sec. 5;Hawaii Rev. Stat., §17-3andHawaii Rev. Stat. § 17-4
• *Idaho: Idaho Code §59-904A
• Kansas: Kan. Const. Art. 2, Sec. 9;Kan. Stat. Ann. §25-3902
• *Maryland: Md. Const. Art. 3, Sec. 13
• Nebraska: Neb. Rev. Stat. §32-566
• North Carolina: NC Const. Art. 2, Sec. 10;N.C. Gen. Stat. § 163-11
• South Dakota: S.D. Const. Art. 3, Sec. 10
• Utah: Utah Const. Art. 6, Sec. 13;Utah Code §20A-1-503
• Vermont: Vt. Const. Chap. 2, Art. 45;Vt. Stat. Ann. tit. 2, §4andVt. Stat. Ann. tit. 2, §9
• West Virginia: W.Va. Const. Art. 4, Sec. 7;W.Va. Code Ann. §3-10-5

Members of Same House and Party as Last Incumbent Appoint

• Ohio: Ohio Const. Art. 2, Sec. 11

*State law stipulates that appointee must be of the same political party as the person s/he succeeds.

Notes

1. Board appoints a person from a list submitted by a citizens' panel.
2. If vacancy occurs 85 days or more before the general election in the second year of the term (terms are for four years), an individual is elected to fill the vacancy instead of making an appointment.
3. Governor must choose from a list of three prospective nominees provided by the political party of the priorincumbent.If a senate vacancy occurs at least 10 days prior to the close of filing for the mid-term primary election (terms are for four years), an individual is elected to fill the vacancy instead of making an appointment.
4. Governor appoints a person from a list submitted by a committee of the political party of the person resigning.
5. Governor appoints a person selected by a committee of the political party of the person resigning.
6. If twelve months or more remain prior to the next general election for legislators, a replacement is elected rather than appointed.
7. If 828 days or more remain until the expiration of the term of office, the qualified electors of a legislative district in which a vacancy in the legislative assembly occurs may petition for a special election to be called by the governor to fill the vacancy.