Research Bulletin No.
December

196J

2

FILLING LEGISLATIVE VACANCIES:
THE

WISCONSIN EXPERIENCE

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F1CJRIJJ:ERI!-y ! l1iI O�J(JNSI 1�!
L�;c}ISLATIVE REFERENCE
LIB:HARY

St;:-.:.te CP:;·',i tol
MBdtsor1 2, 11ifisco11sln

lt-teau

 LRB-RB-63-2
Tiill_ WISCONSIN EXPERIENCE

FILLING LEGISLATIVE VACANCIES:

Table of Contents
Page
Introduction

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Pertinent Statutes and Their Application
Legislative History in Wisconsin

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Wisconsin's Experience with Special Elections
Other Methods Used to Fill Vacancies
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Conclusion
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(1) Special elections •
(2) and (J) Appointments

APPENDIX:

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State Constitutional Provisions Applying to Legisla•
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tive Vacancies
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12

 LRB-RB-63-2

£'JLLlllG L��S LATIVE• !�..fANCIE§l : ._'.I'HE WISCONS IN EXPERIENCE*
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INTRODUCTION
Wisconsin's Constitution provides, in Section 14 of Article IV,
that "the governor shall issue writs of election to fill such vacan­
cies as may occur in either house of the legislature." This provi­
sion has remained unchanged since the adoption of the Constitution
115 years ago.
In a simpler age when Legislatures met but a few months every
2 years, this method of filling legislative vacancies proved adequate.
Now, with the Legislature meeting in lengthy special and extended
regular sessions throughout much of recent legislative biennia, there
are those who believe some modification, some modernization, should
be made in the process of filling vacancies which arise in Wisconsin�
Legislature.
This study will compare the constitutional mandate of this state
with those of other states, exami.ne the laws which implement and re­
late to this sub ject and study Wisconsin's experience following the
occurrence of a legislati.ve vacancy by death or resignation.
PERTINENT STATUTES AND THE IR APPL ICAT ION
The statutory instructions for filli.ng vacancies in Wi.sconsin
legislative offices are contained in Section 7.01 (3) of the Statutes,
which provides:
"Any vactncy in the office of state senator may
7.01 (3)
be filled by election as a vacancy in the office of senator of
the United States may be filled, except as otherwise provided
by this subsection. Any vacancy in the office of state sena­
tor or assemblyman occurring before the first day of February
of the first year of his term shall be filled as promptly as
·may be by special election. But any vacancy in the office of
state senator or assemblyman occurring after the close of the
last regular session of the legislature held during his term
shall not be filled unless a special session of the legisla­
ture be thereafter called during such term, in which case a
special election to fill such vacancy shall be so ordered, if
possi.ble, that the new member may participate in such special
session."
Section 17.18 (2) of the statutes, which governs u.s. Senate
vacancies and thus by Section 7.01 (3) generally covers State Senate
vacancies, reads as follows:
17.18 (2) "Vacancies in the office of United States senator
from this state shall be filled by temporary appointment by the
governor which appointment shall continue until a successor is
elected for the unexpired term. If the vacancy occurs 60 days
or more prior to the second Tuesday of July in even-numbered
*Prepared by Michael R. Vaughan, Bill Draftsman.
1
The words "by election" show that the appointing process for u.s.
Senate vacancies shall not be used here. There is also a consti­
tutional bar to appointing state legislators.

 LRB-RB-6J-2
..ue�rR, such vacancy shall be filled at the primary and general
election in such even year. If the vacancy occurs less than
60 days prior to the second Tuesday in July in even years, it
shall be filled 2 years hence. the provisions for election
x ired t rm shall not apply if the next eneral
,fo
be filled
hich
el
for o qualify
shall
elected
so
senator
The
'ror a f1iJJ te:vm.
e of
certificat
his
receives
he
after
possible
fice as soon as
election. This subsection shall apply to any vacancy occurring
after June 19, 19.57."
Thus the Statutes go into greater detail than the constitutional
provision which on first reading seems to impose a blanket require­
ment on the Governor to call special elections when vacancies oc­
cur. According to Section 7.01 (J), a special election shall not
be held when the last regular session for a vacated term has ended,
unless a special session is called. This, while logical, is an
exception not mentioned in the Constitution.
Section 7.01 (J) also affirms a portion of the constitutional
requirement by stating that any vacancy occurring before the first
February 1 of a legislator's term shall be filled as promptly as
may be by special election.
Between the "shall" and the "shall not" exists a gap which Wis­
consin's Governors have interpreted to mean "may". In that period
between the early and latter parts of a legislative biennium, they
have exercised their own discretion in calling or not calling spe­
cial elections. This discretion is not clearly granted by the Con­
stitution.
Governors have not gone outside the statutory framework to call
special elections in recent years, though. Since 1918, no special
election has been held to fill an Assembly vacancy after the first
April of the vacated term, and for the last 16 years no special
election has been called for such purpose to take place after the
spring election. Th�.s is despite the fact that in recent biennia
a greater part of the session occurred after the first April than
ever before. In the last JO years no election to fill a senatorial
vacancy has been held other than at the time of the spring election
or general election. This rigidity is in keeping with statutory
law, but its compliance with the Constitution is not so obvious.
An opinion of the Michigan Attorney General (dated 7-19-.50) has
dealt with this situation. Michigan's constitutional requirement is
almost identical to Wisconsin's, and the Legislature had enacted a
statute permitting the Governor to call a special election or wait
until the next general election to fill a vacancy. The Attorney
General said that the Governor could defer filling the vacancy until
the next general election, since the Constitution was silent as to
when or how soon the vacancy should be filled. Of course, Wisconsin
courts (or Michigan courts, for that matter) might come to a differ­
ent conclusion than that reached by the Michigan Attorney General.
An administrative procedure, set up by the Wisconsin Statutes
and used in regard to certain state senatorial vacancies, appears
to further amend the Constitution. Under Sections 5.04 and 6.10 of
the Statutes, the Secretary of State notifies the various counties
- 2 -

 LRB-RB-63-2
in even-numbered years to hold September primaries and subsequent
general elections and designates the offices to be voted on at those
elections. If a Senate seat, not due to be voted on for two more
years, stands vacant at that time, the Secretary of State automat­
ically includes that office in his list to the appropriate counties.
Apparently this is considered to be a general election (rather than
a special election) to fill a vacancy for the Unexpired term, and
complies with Sections 7.03 and 17.18 (2) establishing the procedure.
Although complying with statutory requirements, this process,
whereby the Secretary of State is the initiating officer, seems to
fly in the face of the constitutional requirement that the Governor
initiate the election process to fill legislative vacanc:l.es, However,
the present procedure has been followed for many years and has never
been challenged.
There is a financial advantage to using the present procedure.
Currently, the primary and final election for the vacant seat occur,
under the statutory procedure, at the same time as the regular Sep­
tember primary and the November general election, If the Governor
called a special election, the special primary would take place at a
different time than the regular primary. This would involve addi­
tional expense for a specially held primary election, since the
statutes presently require a special primary to precede the special
election by 4 weeks. Thus, if the special election were held concur­
rent with the November general election, the special primary would
have to be in October. For this reason, the present system has ob­
vious merit.
This point may have been within the scope of the situation cov­
ered by the Michigan Attorney General in his opinion discussed ear,..
lier, but no reference was made in the opinion to the problem.
L E G ISLAT IV E H ISTORY IN W ISCONSIN
Almost no attempts have been made to change Wisconsin's law in
this general area, and the statute reads today substantially as it
did in 1849.
In 1961, a measure was introduced in the Senate to provide for
succession to legislative offices during emergencies resulting from
enemy attack. Bill No. 579,s,, introduced by request of the state
Civil Defense Director, passed the Senate but was nonconcurred in by
the Assembly. It would have required each legislator to name from
J to 7 "emergency interim successors" in order of preference, who
would succeed to the powers and duties of the legislator, but not
his office, if the legislator was unavailable because of such an
emergency.
The biJ.l was introduced following ratification by the voters of
a constitutional amendment which had been adopted by both the 1959
and 1961 Legislatures. The amendment created Section 34 of Article
IV of the Constitution which states that the Legislature shall pro­
vide for succession to public office during such emergencies.
These measures anticipate an unusual situation and cannot be
considered indicative of a legislative desire to change the law as
- 3 -

 LBB-BB-63-2
it appl ies in normal circumstances. A measure introduced in 1963,
however, would have applied more generally. Joint Resolution 16,A.,
which failed to pass the Assembly, would have amended the Constitu­
tion to permit the Governor to fill a vacancy by appointment, the
appointee to serve until a successor was elected at a special or
general election.
W ISCONS IN'S EXPERIENCE W ITH SPEC IAL ELECT IONS
Special elections have been held 54 times since 1848 to fill va­
cancies in the state Legislature.
(See Table I) This number does not
reflect those vacancies occurring which were never filled nor does
it include those senatorial vacancies which were filled at the time
of a general election, as discussed above. Since many of the un­
filled vacancies occurred after the end of a legislative session, it
is impossible to accurately state how many such vacancies occurred,
but the unfilled vacancies probably outnumber those filled by special
election as has been the case in recent sessions.
In the 1959 Session a total of 7 vacancies occurred, 5 of them in
the Assembly. All 7 persons leaving office, 4 by resignation and 3
by death, were Democrats. Only 3 of the positions were later filled.
In the Assembly 4 of the 5 vacancies remained open and the Democratic
plurality was cut almost in half (from 55-45 to 51-45) by the end of
the biennium.
In 1961, 6 seats became vacant in the 2 houses, all but one of
them held by Democrats. The vacancies occurring in the State Senate
in that biennium illustrate the political impact which may result
from a number of continuing vacancies. Senators Brennan, Lauri,
Moser and Wilkie, all Democrats, resigned prior to the end of the
1961 Session, leaving vacancies which were not filled during that
session. No other session has extended over a greater period of
time than the 1961 Session and 1 when the Legislature met for 6 weeks
in June and July of 1962, the L} Democrats had already left office.
That session of the Legislature considered the extremely partisan
issue of reapportionment, and votes tended to follow party lines to
a greater than normal degree.
At the beginning of the 1961 Session the Republican ma jority in
the Senate had been 20 to 13. Thus the Republicans had a comfortable
ma jority, but to obtain a two-thirds ma jority they had to hold their
own members and pick up 2 Democratic votes. This was no longer true
in the summer of 1962. With the resignation of 4 Democrats, the
alignment became 20 to 9 in favor of the Republicans. Now they held
a 70 per cent ma jority and could carry measures by a two-thirds mar­
gin even with 2 Republicans not voting. In a situation involving
bloc voting by the parties, the Republicans had gained an incalcul­
able advantage, particularly where a two-thirds ma jority was neces­
sary, such as to suspend the rules or to override a veto.
So, for several weeks of the 1961 Session and while at least one
crucial issue was deliberated, 4 seats stood vacant in the Senate.
Certain statistics further emphasize the importance of those vacan­
cies: The Senate was at less than 88 per cent of its full strength;
almost one-third of the Democrats elected to the 1961 Senate were
no longer eligible to participate; 482,275 persons were no longer
represented in the senate.
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 LRB-RB-63-2

TABLE I.

Special Elections in Wisconsin for State Legislative Offices, 1848-1963(1)

======================:::==- =================
= =================================================================--============

DistrictC2)
16th Sen.
Milwaukee Co,, 2nd
Fond du Lac Co,, 4th
Milwaukee Co,, 9th
Iowa Co, , 2nd
Monroe Co.
5th Sen,
Dodge Co,, 1st
5th Sen.
23rd Sen,
Kewaunee Co.
11th Sen.
Dane Co,, 1st
23rd Sen.
I
Kenosha Co.
"Waushara Co.
1 Milwaukee Co,, 5th
6th Sen,
10th Sen.
14th Sen.
Milwaukee Co,, 4th
3oth Sen,
Marinette Co.
5th Sen,
Burnett and Washburn
Barron Co.
Iron and Vilas
Marathon Co., 2nd
�Jinnebago Co,, 2nd
Manitowoc Co., 1st
11th Sen,
9th Sen,
15th Sen,
Grant Co. , 1st
12th Sen,

Date of Gov,' s
Proclamation
---------------------------------

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10- 9-1906( 6)
3-18-191 2
3-18-1912
3-18-1912
1-25-1913
9-30-1916
12-11-1916
2-23-1917
12- 6-1917
1- 3-1918
1- 3-1918
1- 3-1918
1- 8-1923
11-21-1924
3- 9-1933
2-21-1935
2-21-1935

Date of Special Election
5-20-1853
5-25-1853
1-13-1859
l-26-1860
l- 2-1862
1-16-1862( 3)
6- 2-1862
2-20-1865
3-13-1867
1-21-1879
1- 4-1881
12- 2-1884
3-23-1885
5-24-1892
2-14-1893
2-21-1899
2-28-1899
11- 4-1902(5 )
11- 6-1906 (5 )
4-26-1912
4-26-1912
4-26-1912
2-25-1913

11- 7-1916(5)
1- 5-1917
4_ 3_1917(4)
1-18-1918
2-12-1918
2-12-1918
2-12-1918
2-17-1923
12-30-1924
4-18-1933
4_ 2-1935(4)
4- 2-1935(4)

Name of Person
Vacating Office
Joel C. Squires
Herman Haertel
S, K. Barnes
Andrew Elbe
Cyrus Woodman
Simeon D, Powers
Charles Quentin
James M, McGuire
Jackson Hadley
Charles H. Phillips
John M, Read
Charles M. Webb
William F. Vilas
Walter S. Greene
Daniel A. Mahoney
William Hughes
Albert Woyciechowski
William H. Devos
James A, Frear
J. Elmer Lehr
Carl H. Dorner
James A.Wright
Albert E. Schwittay
Edw. T. Fairchild
Hans M. Laursen
I. J. Kvam
E. A. Everett
D. S, Burnett
William Arnemann
Carl Hansen
O. G, Kinney
Ben H. Mahon
C-eorge W, Blanchard
Bert A. Clemens
B. J. Gehrmann

Reason
for
Vacancy
Res.
Res,
Dec.
Dec,
Res,
Dec,
Dec.
Dec,
Dec.
Dec,
Res,
Res.
Res.
Dec.
Dec.
Dec.
Dec.
Res.
Res,
Res.
Dec.
Dec,
Dec.
Res.
Dec.
Dec.
Res.
Res,
Dec.
Dec,
Dec.
Dec.
Res,
Dec,
Res.

End of
Unexpired
Name of Successor
Term
James W. Seaton
Jan, 1854
Jan. 1854
Riley N , Messenger
Jan. 1860
0, Hugo Petters
Jan. 1861
Theodore Hartung
Jan. 1863
John H. Vivian
Jan. 1863
Joseph M. Morrow
Jan. 1863
Francis Huebschmann
Jan. 1866
Stoddard Judd
Jan. 1869
Henry L. Palmer
Jan. 1881
Joseph B, Bennett
Jan. 1882
Joseph E, Darbellay
Jan,
1886
Merritt C, Ring
Jan. 1887
Michael J, Cantwell
Jan. 1894
Albert Solliday
Jan. 1895
George H. Kroncke
Jan. 1901
David Evans, Jr.
Jan. 1901
Joseph T, Rechlicz
Jan. 1905
Rip Reukema
Jan. 1909
Walter C. Owen
Jan. 1913
Henry M, Culbertson
Jan. 1913
George E. Morton
Jan. 1913
Willard T, Stevens
Jan. 1915
James Larson
Jan. 1919
H. O, Reinnoldt
Jan, 1919
James H, Jensen
Jan. 1919
C, A, Beggs
Jan. 1919
Griffith Thomas
Jan, 1919
Herman A. Marth
Jan. 1919
Publius V, Lawson
Jan. 1919
Walter Wittman
Jan. 1927
Marcus A. Kemp
Jan. 1927
Irving P. Mehigan
Jan, 1935
Alexander M. Paul
William H. Goldthorpe Jan. 1937
Jan, 1937
Joseph E. McDermid

 LRB-RB-63-2

TABlE

I.

Special Elections in Wisconsin for State Legislative Offices, 1848-1963( 1 )

Cont.

===========--==============================================================================================================

1

District(2 )

Date of Gov.' s
Proclamation

Date of Special Election

Name of Person
Vacating Office

27th Sen.
Rusk and Sawyer Cos.
4th Sen.
Milwaukee Co., 14th
Milwaukee Co., 12th
3rd Sen.
7th Sen.
29th Sen.
Dunn Co.
32nd Sen.
12th Sen.
10th Sen.
16th Sen.
Dane Co., 4th
Rock Co. , 2nd

2-21-1935
3-12-1937
2-15-1939
2-15-1939
2-21-1947
2- 4-1949
2- 4-1949
2- 4-1949
2- 2-1951
2-11-1953
8-24-1954
1-26-1955
1-27-1959
2- 2-1959
1-22-1963

4_ 2-1935(4)
4-21-1937
4- 4-1939(4)
L;_ 4-1939(4)
4-22-1947
4- 5-1949(4 )
4- 5_1949(4)
4- 5-1949 4
4- 3-1951 4
4- 7-1953(4)
11- 2-1954(5)
4- 5-1955( 4)
4- 7-1959(4 )
4- 7_1959(4)
4_ 2-1963 (4)

Fred W. Zantow
Jorge W. Carow
Oscar H. Morris
Milton T. Murray
Peter P. Pyszczynski
Clement J. Zablocki
Anthony P. Gawronski
Charles D. Madsen
Earl W. Hanson
Rudolph M. Schlabach
Paul J. Rogan
Warren P. Knowles
Gaylord A. Nelson
Carl w. Thompson
David J, Blanchard

°'
•

SYMBOLS:

Dec. - Deceased

��

Reason
for
Vacanst

Name of Successor

End of
Unexpired
Term

Dec,
Dec.
Dec.
Res.
Dec.
Res.
Res.
Res.
Dec.
Res.
Res.
Res.
Res.
Res.

E. Myrwyn Rowlands
Carl R. Nyman
Milton T. Murray
John McBride
William P. Banach
Casimir Kendziorski
Roman R. Blenski
John F. Olson
G. H. Ba\d{e
Raymond c. Bice
Bernard J. Gehrmann
Robert P. Knowles
Carl W. Thompson
Jerome L. Blaska

Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.
Jan.

Dec.

Carolyn J. Blanchard

Jan. 1965

1939
1939
1941
1941
1949
1951
1951
1951
1953
1957
1957
1957
1961
1961

Res. - Resigned.

(l)Information from files of Wis. Secretary of State, Blue Books and legislative journals.
(2 )All districts containing names of counties are Assembly districts.
(3)This is the date Hon. Joseph M. Morrow took the oath of office as a member of the Assembly.
not available.
(4)Regular spring election.
(5)Regular general election.
(6 )The first date for which dates of Governors' proclamations are readily available.

The date of election is

 LRB-RB-63-2
Some idea of the difficulty which arises because of the neces­
sary time lag in calling special elections can be gleaned from exam­
ining further those Senate resignations.
Senator Brennan resignea. on April 29, 1961, and his term was to
end in January 1963, Several months of legislative meetings lay
ahead. The fact that a substantial portion of the session remained
could have reasonably been anticipated but filling this vacancy in a
t:l.mely manner would have required the expense of a specially held
election. The special election in the district could have been held
at the time of the spring election in 1962 for Milwaukee county
judges, but by then, on the basis of past precedent, one could no
longer anticipate that a significant portion of the session would
occur beyond the time of the election.
Senators Lauri and Moser resigned on December 22, 1961, and Feb­
ruary 1, 1962, respectively. It would have been difficult to antici­
pate that, if special elections were called, the Legislature would
still be in session when successors were elected and qualified.
Senator Wilkie resigned in the latter part of May 1962, and, had
a special election been called, the process would not have been com­
pleted in time for his successor to have participated in any part of
the 1961 Session except the one-day meeting on December 28, 1962,
and the brief convention on January 9, 1963, one hour before the
1961 Legislature's term expired.
Elections were held at the time of the general election in No­
vember 1962, to fill the vacancies left by Senators Moser and Wilkie,
as their terms of office were not to expire until January 1965.
Martin J. Schreiber and Assemblyman Fred A. Risser, respectively,
were elected to fill the vacancies and could have taken office im­
mediately. However, both waited until the convening of the 1963
Legislature to take the oath of office. They did not participate
as Senators in the 1961 Legislature's meetings on December 28, 1962
and January 9, 1963. Mr. Risser continued to serve as an Assemblyman
for those meetings. Had he taken the oath as a Senator, a vacancy
would have existed in his Assembly seat.
The files of the Secretary of State, in whose office all legis­
lators' oaths since 1877 are recorded, show no instance in which a
legislator who was elected to fill a vacancy filed an oath of office
for a legislative biennium in which all regular or special sessions
had ended. In 8 cases, specially elected legislators took the oath,
and then entered office in the closing months of a legislative bien­
nium, but each time a special session followed. No legislator , elected
to fill a vacancy a t the November general elec tion, has taken office
before the convening of the next Legislature in January of the fol­
lowing year,
OTHER M ETHODS USED TO FILL VACANCIES
Table II summarizes the various methods prescribed by state
constitutions (shown in the Appendix) for the filling of legislative
vacancies.
- 7 -

 LRB-RB-63-2
TABLE II.

Constitutional Provisions for Filling Legislative
Vacancies.
{Summary of

Special Election
Called by
Governor
��

State

Appointment by
QQY!illl..Q!:
Other

As Provided
by Law

Ala. • • • • • • x
Ariz. • • • • • • • • • • • • • • • • • • • • • • • • • • x
Ark. • • •••• x
l
Alaska • • • • • • • • •• • • • • • • • • • • • • • • • x
Calif . • • • • x
Colo. ... . ... . . ...... .. .. ... .... . . . . . . . . . . . ' . . . . . . . .. ..
Conn,
No constituti2nal provision
Del. • • • • . . x ....... x
Fla. . . . . . ... ....... . � . . ... . . . . . x
Ga. • • • • • • • x
Hawaii • • • •• • • • • •• • • • • • • • • • • • •• • xl
No constitutional provision
Idaho
111. ...... x
Ind. ...... x
Iowa ...... x
•• • • •
• • • • • • • • ••• • • •
• • •• • • • •
• • •• • •
• • • •• • • •
Kans.
Ky. • • • • • • • • • • • • • • • •• • • • • • • • • • • • • • • • • • • • • • • • • • • • • ••
La. • • • • • • • x
Maine • • • • • x
x4
• • ••
Md.
• • • 7 • . • • • • ••
• •
• •• • • •
Mass.S • •• ••• •• •• •• • x
x
Mich,
•• • ••
Minn. • • • • • x
Miss
x
• ••
•
Mo. • • • • • • • x
6
Mont. •• • • • • • • • • • • • • • • • • • • • • • •• • • • • •• • • • •• x
Nebr. • • • • • • • • • • ••• • • • • • • • • • • •
• • • • • ••• ••
Nev. • • • • • • • • • • •• • • • • • • • • • • • •• • • • • •• • • • ••
N, H. • • • • • • x
N.J. • • • • • • x ••• •• • x7
6
N.Mex. • • • • • • • • • •• • • ' . ..... . .. . ...... . . .. x
N.Y. • e • • • • • • • • • • • • • • • • • • • • •• • • 5 • • • • • • •• • • • • • • •• • • • •
N.C. • • • • • •• • • •• • • • • • • • • • • • • • • • x
N.Dak. • •• • x
Ohio • • • • •• • • • • • • • • •• •• • • • • • • • • • • • • • • •• • • • • • • • • • • •• •• ••
Okla. • • ••• x
Oreg. • • • • • x . . ... .. . � .............................. .
Pa. • • • • • • • • • • • • • • • • • x
R.I. • • • • • • •• • • •• • •• •• z . • • • • • • • • • • • • • • • •• • • • • • • • • • • • • •

x

x

•

•

s.c.

• • • •• •

•• • •• • • • •

x.

x

x

x3

S.Dak. • • • • • • • • • • •• • • • • • • • • • • • •• • x
Tenn. • • • • • x
Texas • • • • • x
Utah • • • • • • • • • •• • • • • • • • • • • . . . . · 1 ................... . x
Vt. • • • • • • • •• • • • • •• • • • ? • ' • • • • •• x
Va. ....... x ....... x
6
Wash. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • x
• • • • • •
. . ... .... ' . . . . ... x
• •
•• • • • • • • • • • • • • •
• •
W.Va,
•
x
Wis. • • • •
Wyo. • • • .. .• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • x
0

•

See top of f ollowing p age f or footnotes.
8

 LRB-RB- 6)-2
Footnotes to Table II
lunless or until otherwise provided by law.
2Presiding off icer of house in which vacancy occurs.
)Shall provide f or special elec.tions only,
4
From name submitted by state central committee of political party
of f ormer off iceholder.
5
senate only.
6
county commissioners• board of vacated district.
?
Members of house in which vacancy occurs.
8
Like f ootnote 4 , but county executive committee.

The process of special elections, in most cases at the call of
the Governor, is the most employed method. Wisconsin is one of 19
states using this system exclusively. Nine other states provide
that special elections called by various persons shall be the only
method used.
Twelve states provide f or appointment to f ill such vacancies.
The Governor is the appointing officer in 8 states, often acting on
the recommendations of others. In 3 of these states, the Legisla­
ture may enact other methods for selecting replacements.
Four western states employ generally similar procedures whereby
the board of county commissioners of the county in which the vacated
district lies appoints a successor. Two of these states require the
appointee to be a member of the same political party as his prede­
cessor. One requires the appointment to be f rom a list of names
submitted by the state central committee of the political party to
which the vacating member belonged. One state provides for appoint­
ment by the Governor in multicounty districts and another provides
f or such action if the various county boards cannot agree.
The Model State Constitution (6th edition) proposed by the Na­
tional Municipal League provides that legislative vacancies "shall
be f illed as provided by law," Eleven states have similar provisions,
though 3 of these states require the manner "provided by law" to be
a special election.
CONCLUSION
It is unf ortunate that Wisconsin has not yet had experience
under the appointing process for u.s. Senate vacancies. Such experi­
ence, compared with the many occasions in which the special election
process has applied, could facilitate a decision as to the best
method f or f illing state legislative vacancies.
Three choices are available:
(1) The present method of f illing legislative vacancies by
special election may be retained.
- 9 -

 LRB- RB-6,3- 2
(2) Some kind of appointing process may be instituted with an
appointee serving the remainder of the vacated term. This would re­
quire a constitutional amendment.
(.3) The 2 systems could be combined as has been done for U. S.
Senate vacancies, with a successor appointed to serve only until a
special election can be held. This would require a constitutional
amendment.
(1) Special elections
The present method of f illing vacancies by special election has
strong support in Wisconsin because of its long use, It is also the
most popular method throughout the United States.
Proponents argue that this method is the only system of f illing
vacancies whereby the wishes of the electorate determine the succes­
sor. They say that this system is the only one that is truly con­
sistent with our form of government--with representatives selected
by the people.
Opponents charge that it is really inconsistent with a republi­
can f orm of government because it denies representation. In many
cases a vacated seat is not filled during the remainder of the ses­
sion in which it was vacated. Even in those cases where special
elections are called, the lengthy and costly process consumes so
many weeks--and even months- -that ef f ective representation is se­
verely curtailed.
Opponents point out f urther that some vacancies occur so closely
to an important part of a session that it is impossible for the va­
cancy to be filled by the election process in time f or effective
representation in that session.
The vacancy created by Senator Wilkie's resignation in May 1 962,
exemplif ies this. He resigned barely .3 weeks bef ore the commencement
If a special election
of the meeting dealing with reapportionment.
had immediately been called upon the Senator's resignation, it is
unlikely that a successor would have been elected and qualified be­
fore the most signif icant part of the 1962 summer session had passed.
The vacancies occurring so far in the 196.3 Legislature also il­
lustrate this point. Assembly Speaker David Blanchard died Decem­
On
ber 24 , 1962, 2 weeks before the commencement of his new term,
January 22, 196,3, Governor Reynolds called f or a special election to
fill the vacancy, to be held at the time of the spring election in
April. Mrs. Carolyn Blanchard was elected on April 2, and entered
1nto of f ice on April 9, 196,3. Thus the people of Rock County's 2nd
Assembly District were without representation for 4 months, most of
which time the Legislature was in session,
Two other deaths have occurred in the 196.3 Assembly.
Hugh A,
Harper, Assemblyman from Grant County, died on August S, 196.3, and
Christ M, Stauff er, Assemblyman from Green County, died on October 15,
196,3. Their counties were unrepresented in the November session of
the Legislature and in the December special session.
By a December
proclamation, the Governor called f or special elections to be held at
the time of the April election in 1964 to f ill these vacancies.
- 10 -

 L RB-RB-6J-2
Some special elections have been held within one month follow­
ing the Governor's proclamation and several more have been held
Within 40 days, but in the last 25 years the tendency has been for
longer periods to elapse.
(2) and (J) Appointments
Proponents of this process cite its successful use in several
states as proof that it is an effective and efficient system, They
add that appointment by the Governor until a successor can be elected
is the present process for filling vacancies in Wisconsin's U.S.
Senate seats and thus the method is not repugnant to our tradition,
although it would require a constitutional amendment,
They argue that the changes in legislative sessions--longer ses­
sions in terms of days convened, and the session stretching over much
greater parts of the biennium--necessitate changes in the method of
picking successors.
Speed is now more important and this process can
be almost instantaneous.
They point out that safeguards can be erected so the voters'
will is not subverted. A successor may have to be a member of the
same political party as his predecessor, if that is desired.
Local
groups may be given the power to name a list from which the Governor
chooses a successor. This retains a measure of local control over
the appointment. Some states give county boards this power; one
grants it to county political committees.
/

Another favorable argument is that the appointment may be only
for the period until a successor is elected, rather than for the
unexpired term. This permits the voters to make their choice as
soon as possible and still receive representation while the special
election wheels grind.
Opponents say that the appointing process is the antithesis of
elective representation and that no safeguards can alter the fact
that ultimately one man or one group appoints the successor. They
allege that there is no way to select the people's choice, save by
an election. The people are better unrepresented, than by a polit­
ical appointee.
Opponents say that an appointment which lasts only until a spe­
cial election gives a great advantage to the appointee-incumbent,
who usually enters the special election race. Lastly, they charge
that appointments are unnecessary, that the special election process,
properly utilized, is fast enough to swiftly restore a district to
its rightful representation.

- 11 -

 LRB-RB-6J-2
APPENDIX:

State Constitutional Provisions Applying to Legislative
Vacancies.

Model State Constitution (sixth edition) prepared by the
National Municipal League.
(Article IV) Section 4.06. When a vacancy occurs in the legis­
lat�re it shall be filled as provided by law.
Alabama
Amendment Article XCVII. "Whenever a vacancy occurs in either
house of the legislature the governor shall issue a writ of elec­
tion to fill such vacancy for the remainder of the term."
Alaska
Article II) Section 4, "A vacancy in the legislature shall
be filled for the unexpired term as provided by law. If no provision
is made, the governor shall fill the vacancy by appointment."
Arizona
(Article V) Section 8. "When any office shall, from any cause,
become vacant, and no mode shall be provided by the Constitution or
by law for filling such vacancy, the Governor shall have the power to
fill such vacancy by appointment."
Arkansas
(Article V) Secti.on 6,
"The Governor shall issue writs of
election to fill such vacancies as shall occur in either house of
the General Assembly,"
California
(Article IV) Section 12. "When vacancies occur in either
house, the Governor, or the person exercising the functions of the
Governor, shall issue writs of election to fill such vacancies, "
Colorado
(Article V) Section 2, " • • • Any vacancy occurring in either
House by death, resignation, or otherwise, shall be filled in the
manner prescribed by law. The person appointed to fill the vacancy
shall be a member of the same political party, if any, as the person
whose termination of membership in the General Assembly created the
vacancy."
Connecticut - No constitutional provision.
Delaware
(Article II) Section 6. "Whenever there·. shall be a vacancy in
either House of the General Assembly, by reason of failure to elect,
ineligibility, death, resignation or otherwise, a writ of election
shall be issued by the presiding officer of the House in which the
vacancy exists, or in case of necessity in such other manner as
shall be provided by law; and the person thereupon chosen to fill
such vacancy shall hold office for the residue of the term, And
whenever there shall be such vacancy in either House, and the General
Assembly is not in session, the Governor shall have power to issue a
writ of election to fill such vacancy, which writ shall be executed
- 12 -

 LRB-RB-6.3-2
as a writ issued by the presiding officer of either House in case
of vacancy, and the person thereupon chosen to fill such vacancy
shall hold office for the residue of the term."
Florida
(Article IV) Section 7 , " When any office,
shall become vacant, and no mode is provided by
the laws of the State for filling such vacancy,
have the power to fill such vacancy by granting
unexpired term, "

from any cause,
this Constitution or by
the Governor shall
a commission for the

(Article XVIII) Section 9, "A general election shall be held in
each county in this State on the first Tuesday after the first Mon­
day in November, A.D, 1898, and every two years thereafter, for all
elective State and County officers, whose terms of office are about
to expire or for any elective office that shall have become vacant."
Georgia
("Article V) Section 1, Paragraph XII. "The Governor shall
issue writs of election to fill all vacancies that may happen in the
Senate and the House of Representatives..."
Hawaii
Article III) Section 6. "Any vacancy in the legislature shall
be filled for the unexpired term in such manner as may be prescribed
by law, or, if no provision be made by law, by appointment by the
governor for the unexpired term."
Idaho - No constitutional provision.
Illinois
(Article IV) Section 2. " ...When vacancies occur in either
house, the Governor, or person exercising the powers of Governor,
shall issue writs of election to fill such vacancies."
Indiana
(Article 5 ) Section 19. "He ,(the governor,7shall issue writs of
election to fill such vacancies as may have occurred in the General
Assembly."
Iowa

(Article III) Section 12, "When vacancies occur in either
house, the Governor, or the person exercising the functions of Gov­
ernor, shall issue writs of election to fill such vacancies."

-

Kansas
Article II) Section 9, "All vacancies occurring in either
house shall be filled in such manner as the legislature shall provide."
Kentuck:y:
Section 15 2. " • • • No person shall ever be appointed a member of
the General Assembly, but vacancies therein may be filled at a spe­
cial election, in such manner as may be provided by law."
Louisiana
(Article III) Section 8, " • • • Should a vacancy occur in either
house, the Governor shall order an election to fill such vacancy
- 1.3 -

 LRB-RB-6J-2
for the remainder of the term."
Maine

(Article IV, Part First) Section 6. "Whenever the seat of a
member Lof the house of representatives7 shall be vacated by death,
resignation, or otherwise the vacancy may be filled by a new elec­
tion."

(Part Second) Section 4. "· • • All vacancies in the senate,
arising from death, resignation, removal from the state, or like
causes, shall be filled by an immediate election in the unrepre­
sented county. The governor shall issue his proclamation therefor
and therein fix the time of such election."
Maryland
(Article III) Section lJ. "In case of death, disqualification,
resignation, refusal to act, expulsion, or removal from the county or
city for which he shall have been elected, of any person who shall
have been chosen as a Delegate or Senator, or in case of a tie be­
tween two or more such qualified persons, the Governor shall appoint
a person to fill such vacancy from a person whose name shall be sub­
mitted to him in writing by the State Central Committee of the polit­
ical party with which the Delegate or Senator, so vacating, had been
affiliated in the County or District from which he or she was elected,
provided that the appointee shall be of the same political party as
the person whose office is to be filled; and it shall be the duty
of the Governor to make said appointment within fifteen days after
the submission thereof to him. In the event there is no State Cen­
tral Committee in the County or District from which said vacancy is
to be filled, the Governor shall within fifteen days after the oc­
currence of such vacancy appoint a person who is otherwise properly
qualified to hold the office of delegate or senator in such District.
or County. In every case when any person is so appointed by the gov�
ernor, his appointment shall be deemed to be for the unexpired term
of the person whose office has become vacant."
Massachusetts
(Articles of Amendment) Article XXIV. "Any vacancy in the Sen­
ate shall be filled by election by the people of the unrepresented
district, upon the order of a majority of Senators elected, "
Michi an
Article V) Section 13. " The governor shall issue writs of
election to fill vacancies in the senate or house of representatives

f

• • •

"

Minnesota
(Article IV) Section 17 . "The governor shall issue writs of
election to fill such vacancies as may occur in either house of the
legislature ... "
Mississippi
(Article IV) Section 7 7 . "The governor shall issue writs of
election to fill such vacancies as may occur in either house of the
legislature, and the persons thereupon chosen shall hold their seats
for the unexpired term. "
- 14 -

 LRB-RB-6J-2

I

Missouri
'l'Article III) Section 14. "Writs of election to fill vacancies
in either house of the general assembly shall be issued by the governor. "

�

Montana
(Article V) Section 45. "When vacancies, caused by death, occur
in either house of the legislative assembly, such vacancies shall be
filled by appointment by the board of county commissioners of the
county from which such vacancy occurs • • • "
Nebraska
(Article III) Section 2J. "All offices created by this con­
stitution shall become vacant by the death of the incumbent, by re­
moval from the state, resignation, conviction of a felony, impeach­
ment, or becoming of unsound mind. And the Legislature shall pro­
vide by general law for the filling of such vacancy, when no provi­
sion is made for that purpose in this Constitution."
Nevada

Article IV) Section 12, "In case of the death or resignation
of any member of the legislature, either senator or assemblyman, the
county commissioners of the county from which such member was elected
shall appoint a person of the same political party as the party which
elected such senator or assemblyman to fill such vacancy; provided,
that this section shall apply only in cases where no biennial elec­
tion or any regular election at which county officers are to be
elected takes place between the time of such death or resignation and
the next succeeding session of the legislature."
New Hampshire
(Part Second) Article 16. "All intermediate vacancies, in the
house of representatives may be filled up, from time to time, in the
same manner as biennial elections are made,"
Article J4. " • • • All vacancies in the senate arising by death,
removal out of the state, or otherwise, except from failure to elect,
shall be filled by a new election by the people of the district upon
the requl.sition of the governor, as soon as may be after such vacan­
cies shall happen."
New Jersey
(Article IV) Section IV, 1. "Any vacancy in the legislature
occasioned by death, resignation or otherwise shall be filled by
election for the unexpired term only, as may be provided by law.
Each house shall direct a writ of election to fill any vacancy in
its membership; but if the vacancy shall occur during a recess of
the Legislature, the writ may be issued by the Governor, as may be
provided by law. "
New Mexico
Section 4. " • • • If a vacancy occurs in the office
(Article IV)
of Senator or member of the House of Representatives, for any reason,
the County Commissioners of the county wherein the vacancy occurs
shall fill such vacancy by appointment; provided, however, that if a
vacancy occurs in a Legislative District composed of more than one
(1) county, then the County Commissioners of each County in the Leg­
islative District shall submit one (1) name to the Governor, who
- 15
-

 LRB-RB-63-2
shall appoint the representative to fill such vacancy from the list
of names so submitted by the respective County Commissioners.
"Such legislative appointments as provided in this section shall
be for a term ending on December 31, subsequent to the next succeed­
ing general election. "
New York
(Article XIII) Section 8. "The legislature shall provide for
filling vacancies in office • • • "
North Carolina
(Article II) Section 13. "If a vacancy shall occur in the
General Assembly by death, resignation or otherwise, the said vacancy
shall be filled immediately by the Governor appointing the person
recommended by the executive committee of the county in which the
deceased or resigned member was resident, being the executive commit­
tee of the political party with which the deceased or resigned member
was affiliated at the time of his election."
North Dakota
(Article II) Section 44.
''The governor shall issue writs of
election to fill such vacancies as may occur in either house of the
legislative assembly. "
Ohio

(Article II) Section 11. "All vacancies which may happen in
either House shall, for the unexpired term be filled by election,
as shall be directed by law.''

-

Oklahoma
\Article V) Section 20. "The Governor shall issue writs of
election to fill such vacancies as may occur in the Legislature."
Oregon
"• • • If
a vacancy in the office of sen;
(Article IV) Section 3.
ator or representative from any county or district or subdistrict
shall occur, such vacancy shall be filled as may be provided by law.'!
(Article V) Section 17. "He Lthe governor7 shall issue writs of
Election to fill such vacancies as may have occured (sic) in the Leg­
islative Assembly. "
Penns lvania
Article II) Section 2. " • • • Whenever a vacancy shall occur in
either House, the presiding officer thereof shall issue a writ of
election to fill such vacancy for the remainder of the term. "

f

Rhode Island
11
vacancy in the senate
Amendment Article X I) Section 6.
• • •A
The
or house of representatives shall be filled at a new election.
general assembly shall provide by general law for the holding of
such elections at such times as to insure that each town and city
shall be fully represented in the general assembly during the whole
of every session thereof so far as is practicable. Every person
elected in accordance with this section shall hold his office for
- 16 -

 LRB-RB -6)-2
the remainder of the term or for the full term, as the case may be,
of the office which he is elected to fill, and until his successor
is elected and qualified,"
South Carolina
(Article III) Section 25, " If any election district shall
neglect to choose a member or members on the day of elec·tion, or if
any person chosen a member of either house shall refuse to qualify
and take his seat, or shall resign, die, depart the State, accept
any disqualifying office or position, or become otherwise disquali­
fied to hold his seat, a writ of election shall be issued by the
President of the Senate or Speaker of the House of Representatives,
as the case may be, for the purpose of filling the vacancy thereby
occasioned for the remainder of the term for which the person so re­
fusing to qualify, resigning, dying, departing the State, or becom­
ing disqualified, was elected to serve, or the defaulting election
district ought to have chosen a member or members."
South Dakota
(ArTICie III)
Section 10, "The governor shall make appoint­
ments to fill such vacancies as may occur in either house of the leg­
islature. "
Tennessee
Section 15. "When vacancies happen in either
(Article II)
house, the Governor for the time being shall issue writs of election
to fill such vacancies."
Texas

(Article III) Section 1). "When vacancies occur in either
house, the Governor, or the person exercising the power of the Gover­
nor, shall issue writs of election to fill such vacancies; and should
the Governor fail to issue a writ of election to fill any such va­
cancy within 20 days after it occurs, the returning officer of the
district in which such vacancy may have happened shall be authorized
to order an'election for that purpose. "
Utah

Section 1), "Vacancies that may occur in either
(Article VI)
house of the legislature shall be filled in such manner as may be
provided by law."
-

Vermont
(Chapter II) Section 1), ", the General Assembly shall have
the power to regulate by law the mode of filling all vacancies in the
House of Representatives which shall happen by death, resignation or
otherwise."
•

•

Section 20. " The Governor, and in his absence the Lieutenant
Governor, shall have power to commission all officers, and also to
appoint officers, except where provision is, or shall be, otherwise
made by law on this Frame of Government; and shall supply every va­
cancy in any office occasioned by death or otherwise, until the of­
fice can be filled in the manner directed by law or this Constitution."
Section 37. " • • • the General Assembly shall have power to regu­
late by law the mode of balloting for Senators, within the several
- 17 -

 LRB-RB-6)-2
counties, and to prescribe the means and the manner, by which the
result of the balloting shall be ascertained, and through which the
Senators chosen shall be certified of their election, and for fill­
ing all vacancies in the Senate... "
�ia
(Article IV)
Section 47. "... Each house shall select its of­
ficers, settle its rules of procedure, and direct writs of election
for supplying vacancies which may occur during the session of the
General Assembly; but if vacancies occur during the recess, such
writs may be issued by the Governor, under such regulations as may
be prescribed by law, • • "
Washington
Such
(Article II) Section 15. "Vacancies in the Legislature.
vacancies as may occur in either house of the legislature or in any
partisan county elective office shall be filled by appointment by
the board of county commissioners of the county in which the vacancy
occurs: Provided, That the person appointed to fill the vacancy
must be from the same legislative district and the same political
party as the legislator whose office has been vacated, and shall be
one of three persons who shall be nominated by the county central
committee of that party, and the person so appointed shall hold of­
fice until his successor is elected at the next general election,
and shall have qualified: Provided, That in case of a vacancy oc­
curring in the office of joint senator or joint representative, the
vacancy shall be filled from a list of three nominees selected by
the state central committee, by appointment by the joint action of
the boards of county commissioners of the counties composing the
joint senatorial or joint representative district, the person ap­
pointed to fill the vacancy must be from the same legislative dis­
trict and of the same political party as the legislator whose office
has been vacated, and in case a majority of said county commissioners
do not agree upon the appointment within sixty days after the vacancy
occurs, the governor shall within thirty days thereafter, and from
the list of nominees provided for herein, appoint a person who sha11:
be from the same legislative district and of the same political
party as the legislator whose office has been vacated. "
West Virginia
(Article IV)
Section 7, ".,. Elections to fill vacancies shall
be for the unexpired term.
When vacancies occur prior to any gen­
eral election, they shall be filled by appointments in such manner
as may be prescribed herein, or by general law, which appointments
shall expire at such time after the next general election as the
person so elected to fill such vacancy shall be qualified."
Wisconsin
"The governor shall issue writs o f
. (Article IV) Section 14.
election to fill such vacancies as may occur in either house o f the
legislature."
Wyoming
Section 4. "When vacancies shall occur in the
(Article III)
membership of either House of the Legislature of the State of Wyom­
ing through death, resignation or other cause, such vacancies shall
be filled in such manner as may be prescribed by law • • • "
- 18 -

 LEGISLATIVE REFERENCE LIBRARY
Research Bulletin:
RB-141

A Guide to the Wisconsin Blue Book,
February ;i.963.

1853 to 1962.

Informational Bulletins:
IB-222
IB-223
IB-224
IB-225
IB-226
IB-227
IB-228
IB-229
IB-230

A Chronological Listing of Important Events in the History
of Wisconsin Legislative and Congressional Apportionment,
1950 to December 31, 1962.
January 1963.
Wisconsin vote for Governor 1954 to 1962, by County:
Re­
publican Plurality, Per cent, and 5-Election Average.
January 1963.
Three Proposed Amendments to the Wisconsin Constitution
to be Submitted to the April 1963 Election,
March 1963.
Full-Crew Laws in Wisconsin:
Highlights of Their
History.
April 1963.
April 1963.
Annual Versus Biennial Legislative Sessions.
Analysis of the Family Code:
Establishment and Termina­
May 1963.
tion of Marriages in Wisconsin.
Mathematics of Apportionment Applied to the Wisconsin
Assembly.
May 1963.
The Evolution of the Occupational Motor Vehicle Operator's
License in Wisconsin.
June 1963.
The Parole of County Jail Prisoners Under the Wisconsin
Huber Law.
June 1963.
LEGISLATIVE REFERENCE BUREAU

Informational Bulletins:
IB-63-1
IB-63-2

IB-63-3
IB-63-4

October 1963.
Medical Care for the Aged in Wisconsin.
A Brief Review
The School Aid Formula in Wisconsin:
of its Development.
October 1963.
The 1963 Executive Vetoes in Wisconsin.
Occupational Licensing in Wisconsin.

October 1963.

December 1963.

Resea rch Bulletins:
RB-63-1
TheSpecial Session in the Wisc
onsin Legislature.
December 1963.
RB-63-2
Filling Legislative Vacancies:
The Wisconsin Exp erien ce
December 1963.

.