It Defies the Constitution for Senator Darline Graham to Continue Representing South Carolina — and California and Tennessee Have Also Violated the Right of the People to Elect Senators
by Bryan H. Wildenthal (November 9, 2026)
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On December 11, 2020, I published an essay on Jurist, noting the “outrage” that we have never yet “fully honor[ed] the 17th Amendment, which guarantees the people’s right to elect senators, including prompt special elections to fill vacancies.”
The 17th Amendment, ratified in 1913, abolished a procedure in the original Constitution of 1787 that allowed politicians in state legislatures (instead of voters) to elect U.S. senators. That was not only undemocratic, it became notorious for the corruption it enabled, as party bosses in smoke-filled rooms traded Senate seats for political favors or outright bribes.
The American people were cut out of the process of choosing the members of one of the two great Houses of our national Congress. The 17th Amendment, one of the most magnificent reforms and achievements of the Progressive Era (strangely maligned by some rightwing extremists today), was supposed to end that.
But most states, it seems, have never fully gotten the memo. In various ways, the vast majority of states continue to flout the plain textual commands of the Amendment.
The vast majority of states fail to provide for the prompt special elections clearly required by the Amendment. Most fail to require any election until the next regularly scheduled biennial November election (sometimes more than two years later), even when the vacancy in question happens many months or even years before the date of that election.
Yet the Amendment expressly commands that the governor, in case of a Senate vacancy, “shall issue writs of election to fill such vacancies” (emphasis added).
That must refer, as a general rule, to special elections, since there is no need for any special issuance of “writs” for elections on dates already regularly scheduled by law (like the biennial November elections). Of course, in some particular cases, a regularly scheduled election may occur as soon as any special election could be called, so in those cases it does make sense to combine the required special election with the existing regular election.
Most states also fail to honor the Amendment’s express command that the “appointments” of senators by governors to fill vacancies must be only “temporary” (emphasis added). Such “temporary appointments” must last only “until the people fill the vacancies by election” (emphases added).
And again, as noted above, that election must be a special election, except in cases when the vacancy arises so close in time before a regularly scheduled November election that there’s no time for an earlier special election.
But even in the latter scenario, the election must not merely be a regular election for the next Senate term. Rather, it must provide for “the people” to “fill … by election” the vacancy in the current Senate term.
If it were sufficient for the governor to fill that vacancy by appointment, the Amendment would say that. But it does not. And it would not call the appointment “temporary” if it might last for many months or even years to the end of the current term.
An appointment to the Senate by a governor that lasts for multiple months (even years in some cases), until the next biennial November election or until the end of the current Senate term, cannot reasonably be viewed as “temporary.”
The word “temporary” obviously does not have a precisely definable meaning, but there is a reasonable outer limit to what it can mean. I would suggest that outer limit is the minimum amount of time a reasonable person might view as necessary to schedule and conduct a special election — surely one or two months at most.
This is all blindingly clear from the plain text, structure, and history of the 17th Amendment (see below in this essay for the full text).
Under the terms of the Amendment, appointment by the governor is an optional, additional, and “temporary” stopgap for those states choosing to authorize it.
States are not required to authorize it. Kentucky, North Dakota, Rhode Island, and Wisconsin do not authorize any executive “appointment,” choosing to allow only “the people” to fill Senate vacancies “by election.”
That is, after all, in line with the traditional rule under the original Constitution (and to this day) for filling vacancies in the U.S. House of Representatives. According to Article I, section 2, clause 4: “When vacancies happen in the Representation from any State [in the House],” the only way to fill such a vacancy is for the state’s governor to “issue Writs of Election to fill such Vacancies.”
Under no circumstances whatsoever can any members of the U.S House of Representatives be appointed. They can only be elected.
The 17th Amendment likewise harmonized at least a similar baseline rule for the Senate. In all cases, the Amendment requires “election” by “the people” to fill vacancies, regardless of whether the state also chooses to authorize “temporary” executive “appointment.”
The motivations for a state legislature to decline the appointment option may of course vary. The MAGA Republican-controlled Kentucky legislature recently banned executive appointment in that state to prevent Democratic Governor Andy Beshear (a likely 2028 presidential candidate), from replacing aging Republican Senator Mitch McConnell should he die or be forced to resign for health reasons.
The National Conference of State Legislatures (NCSL) provides the following “Overview” on its main website about the process for filling vacancies in the Senate. According to the NCSL:
“The U.S. Constitution requires U.S. Senate vacancies to be filled by an election and permits state legislatures to determine the timing of the election through state law. The Constitution also allows state legislatures to empower governors to make temporary appointments until the seat is filled at an election. States’ approaches to this requirement vary in two ways: whether the vacancy is filled at a regularly scheduled election or at a special election; and whether the governor can make an appointment to fill the vacancy during the period before the election occurs.”
The basic points in this “Overview” are correct, but based on the text of the 17th Amendment as quoted above, it should be clear how this is also marred by inaccurate and misleading statements which misrepresent the requirements of the Constitution.
The 17th Amendment does not simply “permit state legislatures to determine [under state law] the timing” of Senate vacancy elections.
It is true that the original Constitution, Article I, section 4, clause 1, does generally delegate to state legislatures the power to regulate the “Times, Places and Manner for holding Elections for Senators,” subject to legislative override by Congress as to the “Times” and “Manner” of Senate elections.
Since the 17th Amendment is silent on the subject of state or federal authority over Senate elections (it does, as we will see, grant state authority over appointments to the Senate), and does not purport to alter the pre-existing state and federal legislative powers on that subject under Article I of the Constitution, states must still be empowered to regulate the “Times, Places and Manner for holding” all “Elections for Senators” by “the people” under the 17th Amendment, including all special elections.
But obviously, states can only exercise that power consistently with the 17th Amendment. And Congress, for its part, clearly retains the power to override state regulations by federal law (if it chooses), as to the “Times” and “Manner” of senatorial elections, again consistently with the 17th Amendment.
The failure to authorize federal regulation of the “Places” of senatorial elections is a relic of the original constitutional procedure of election by state legislatures. If Congress could have regulated where those elections occurred, it could effectively have regulated where the state legislature could convene. Elections by the people cannot normally be said to occur in any particular “Place.” They occur statewide. But to whatever extent they might occur in a particular “Place” or “Places,” only the states (not Congress) may regulate that aspect of the elections.
As we have seen, the 17th Amendment specifically governs elections to fill Senate vacancies and it mandates prompt special elections.
Furthermore, the state legislature and governor do not simply have a choice about whether to fill the vacancy by special election or wait for a regularly scheduled election. The 17th Amendment makes that choice for them. It requires a prompt election pursuant to special “writs,” unless of course it so happens that a regular election is already scheduled to occur as soon as any special election could be called.
Rather comically, the second paragraph of the NCSL “Overview” says that under state law in “three states — Connecticut, Louisiana and Texas — the governor may only make an appointment to fill the vacancy temporarily and under certain conditions” (emphasis added).
But it is not just state law in those three states that requires gubernatorial appointments to be only “temporary”! It is the 17th Amendment to the U.S. Constitution, which most assuredly governs all 50 states!
State legislatures are perfectly free to place any conditions they want on the governor’s power to make temporary Senate appointments. Since they can deny that power altogether, that is fairly obvious. As the NCSL notes: “Eleven states require the appointee to be of the same party as the vacating senator.” A few states “require their governors to make an appointment based on a list of three recommended prospects from the legislature.”
There is no doubt whatsoever that such state laws are constitutional. The 17th Amendment expressly states that “the legislature of any State may empower the executive … to make temporary appointments … as the legislature may direct.”
Also, by the way, nothing in either the original Constitution or the 17th Amendment authorizes any federal override by Congress of any state laws on “appointments” as opposed to “elections” of senators.
The states appear to fall into three broad categories when it comes to appointments and elections to fill Senate vacancies.
As noted earlier, four states — Kentucky, North Dakota, Rhode Island, and Wisconsin — hew too closely to the spirit of the 17th Amendment by refusing to authorize any appointment of senators at all. But that clearly goes too far. There is no good reason why a state should deny itself half of its representation in the Senate for even a short period of time.
The Amendment expressly authorizes temporary executive appointments and state legislatures should take advantage of that with whatever safeguards or limitations each state may deem appropriate. Some states refusing to do so, such as Kentucky, have been motivated by crass partisan considerations.
According to my research, eight states strike the right balance overall. They authorize executive appointments to temporarily fill Senate vacancies but also require reasonably prompt special elections. Those states are Alaska, Connecticut, Louisiana, Massachusetts, Mississippi, Texas, Vermont, and Washington.
Alabama used to be among the latter group of states. But — yet again for crass partisan reasons — Alabama abolished its provision for prompt special elections after former Democratic Senator Doug Jones won an upset special election victory in December 2017. Alabama’s MAGA Republican politicians dishonestly gaslighted the state’s people by claiming special elections cost too much money!
So 38 states altogether (including Alabama) — more than three fourths — now brazenly defy the 17th Amendment by making no provision whatsoever for special elections!
Those 38 states instead force their voters to wait up to two years or more for the next regular biennial November election and the chance to render their verdict on appointed senators.
As discussed in my 2020 Jurist essay, Arizona Senator John McCain died in August 2018, yet Arizona (one of those 38 states) deemed that too late under state law to fill the vacancy by election at the November 2018 election several months later.
It had been known for a year before that Senator McCain, tragically, was terminally ill. He ceased performing his senatorial duties more than six months before his death. I hate to criticize such an honorable man and patriot who served his nation in war and peace, who courageously faced terminal illness, and who is now deceased. But honestly, he, like any public official in the same situation, should have resigned as soon as his health no longer permitted him to perform his duties. He effectively denied the people of Arizona full representation in the Senate for many months.
Instead of being allowed to vote on McCain’s successor in November 2018, the people of Arizona were denied their right to elect one of their senators for well over two years, until November 2020, when Democratic Senator Mark Kelly was finally elected. He took office, after the election was certified, on December 2, 2020. Both McCain himself, and Arizona state law, share the blame for that.
Quite likely, Senator Kelly (and the people of Arizona) were denied more than two full years of Senate service that Kelly otherwise could have provided. Democratic Senator Kyrsten Sinema (later an independent) won election to Arizona’s other Senate seat in November 2018, so it is very likely that Kelly would also have been elected in November 2018.
But, of course, that did not serve the interests of Arizona’s MAGA Republican political leaders, nor President Trump, who were also hostile, it should be noted, to the late Senator McCain himself. Trump cruelly mocked McCain both before and after his death.
Arizona’s MAGA governor appointed two rightwing Trump loyalists to McCain’s seat, despite McCain’s own record of occasionally defying Trump and his own party. We all remember McCain’s courageous and decisive thumbs-down vote on the key proposal to repeal Obamacare on July 28, 2017. It was truly stunning that he cast the decisive vote to preserve the central legacy of the president who defeated him in 2008.
Most astonishing of all, McCain’s second appointed replacement in the Senate, in January 2019, was Senator Martha McSally, even though she had just been defeated by Senator Sinema and thus rejected by the people of Arizona!
McSally served almost two full years before being again defeated by Senator Kelly in November 2020! This far-right MAGA politician served almost one third of the entire final term to which a very different politician, Senator McCain, was elected by Arizonans, even though the people of Arizona rejected her not once but TWICE!
The brazenness of most states in thumbing their noses at the 17th Amendment appears to know no bounds.
Here is the full text of the Amendment, omitting clause 3 (which merely prevented the Amendment from affecting senators already sitting in 1913):
Clause 1: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”
Clause 2: “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That 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.”
By way of background, as noted earlier, the original Constitution, Article I, section 4, clause 1, also has this to say about Senate elections:
“The Times, Places and Manner of holding Elections for Senators … shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Choosing Senators.”
Like Arizona, both states in which I’ve lived for most of the last 45 years, California and Tennessee, also stand in flagrant violation of the 17th Amendment.
I can still recall my anger and disgust in 1990 when California Republican Senator Pete Wilson won election as California governor (narrowly defeating Dianne Feinstein) and then appointed his own successor in the Senate. Having abandoned his own six-year Senate term to which California voters had elected him in 1988, Wilson asserted the outrageous privilege of handpicking, as his successor, Senator John Seymour, an Orange County state senator and bland rightwing apparatchik.
There was no prompt special election. California voters were given no say for almost two full years. Seymour served from January 1991 to November 1992, almost one third of the entire Senate term, before being trounced by Senator Dianne Feinstein in the November 1992 election. She took office immediately, served out the remaining two years of Wilson’s term, and was then reelected in 1994, 2000, 2006, 2012, and 2018 before dying in office at the age of 90 in September 2023.
Feinstein might well have lost a prompt special election in late 1990 or early 1991, as California had not yet shifted as strongly Democratic as it had by 1992. Wilson narrowly defeated her for governor, after all, and was reelected governor in 1994.
But it is an unconstitutional outrage, pure and simple, that the people of California had no say.
The same outrage is about to play out in Tennessee (to which I moved earlier this year). Our MAGA Republican Senator Marsha Blackburn, who has arrogantly refused for years to participate in any debates or voter town halls, was first elected to the Senate in 2018, with 55% of the vote against popular former Democratic Tennessee Governor Phil Bredesen. She was reelected in 2024, on Donald Trump’s coattails, with 64% of the vote, the exact same percentage by which Trump himself carried Tennessee.
Just two years into her second Senate term, Blackburn decided to abandon it to run for Governor of Tennessee. She refused to debate any of her Republican or Democratic rivals. Perhaps partly as a result, she barely cleared 45% of the vote on November 3, 2026, a stunning drop of almost 20 points from her margin just two years earlier, defeating her Democratic opponent, Jerri Green, by only 2.5 percentage points.
Blackburn will now, astonishingly, assert the same privilege as Pete Wilson 36 years ago by handpicking her own successor in the Senate. Because Tennessee state law, like California’s, flagrantly violates the 17th Amendment by not providing for any prompt special election, the people of Tennessee will be denied any voice or vote in the matter until the next regular biennial election in November 2028.
It is unclear whom Blackburn may choose to appoint. President Trump’s Secretary of Defense, the mass murderer and war criminal Pete Hegseth (who vainly, falsely, and illegally styles himself “Secretary of War”), was rumored, apparently mistakenly, as a possibility. But whoever the appointee is, they will not face the voters of Tennessee for almost two full years.
This is an outrage and it stands in brazen violation of the U.S. Constitution.
This is not a partisan issue. It is not a Red State vs. Blue State problem. As we have seen, the states hewing to the text and spirit of the 17th Amendment are almost evenly divided between Red and Blue. And the vast majority that flagrantly defy the Amendment are likewise divided between Red and Blue.
It is equally outrageous that California Governor Gavin Newsom, on January 20, 2021, appointed Alex Padilla as senator to replace Kamala Harris, who took office as Vice President of the United States the same day, and that Padilla then served almost two full years until finally facing California voters in November 2022 (he won handsomely with 61% of the vote).
As summarized by Padilla’s Wikipedia article, however, Padilla “appeared on two ballots” in November 2022, “one for the special election to fill the remainder of [Harris’s] term” (Wikipedia weirdly and mistakenly calls it “his” term), “and the other for the new [six-year] term beginning [January 3, 2023].”
As Wikipedia notes: “The special election was due to a recent change in California law that ended Padilla’s appointment in November 2022.”
This is important! Pay attention!
Previously, under California state law — and still, to the best of my knowledge, under the laws of many other states, including South Carolina as we will see — if an election to fill a Senate vacancy occurs near the end of a six-year term, on the same date as the regular November election for a new six-year Senate term, many states do not provide for any special election at all, not even one consolidated with the regular election!
They hold only the regular election already required for the new Senate term and simply allow the appointed senator to serve out the entire remainder of the term during which the vacancy occurred without EVER facing the voters (except, perhaps, in the regular election, if the appointee seeks a full six-year term).
This is astonishing. It is once again in plain violation of the 17th Amendment. And it is totally unnecessary to boot. It is obviously extremely easy to add a special election to the very same ballot, with no significant added expense to anyone, since the two races effectively, in most cases, become one for all practical purposes.
Yet this appears to be precisely what South Carolina has done under its state law.
When Senate vacancies are filled during the middle of a six-year term, the appointed incumbent’s term typically ends immediately (unless the appointee wins the election), and whoever wins the election takes office as soon as the election is certified, typically in November or early December at the latest.
That’s what happened with Senator Feinstein in California in November 1992 and with Arizona Senator Mark Kelly in December 2020 (as discussed in my Jurist essay).
But in South Carolina on November 3, 2026, just as in California in November 2022, a regular election was held for a new six-year Senate term in which an incumbent appointed by the governor was a candidate.
In California, in 2022, the governor’s choice won by a landslide among that state’s voters (but he should have faced them almost two years earlier).
In South Carolina, appointed Republican Senator Darline Graham was rejected by her state’s voters. Graham, Governor Henry McMaster’s choice, was widely reported and acknowledged to have been appointed at the specific personal demand of President Donald Trump, who also personally urged Graham to run for the new six-year term.
But it was the Democratic candidate, Dr. Annie Andrews, who was instead elected to the new term by the people of South Carolina by 51-47%.
Senator Darline Graham is the sister of the late South Carolina Senator Lindsey Graham, who died in office on July 11, 2026, almost four months before the November election (in which he was a candidate for reelection to a new term) and almost six months before the end of his term on January 3, 2027.
There is actually no good reason why a prompt special election to replace the late Senator Graham could not have been held within a month of his death, surely by the end of August. Some expense and inconvenience might be involved, but what is democracy worth? How important is it for a state to be represented in one of our two great Houses of Congress by a senator actually elected by the state’s people as the 17th Amendment commands?
Still, there may be a reasonable argument, with a vacancy occurring less than four months before the regular election for a new term, to hold the special election on the same date. An appointed senator, as authorized by the 17th Amendment and most state laws, can serve in the meantime so the state is not deprived of its full Senate representation.
But South Carolina, according to every report I have seen, has no provision for any special election! Instead, Darline Graham, appointed by a single politician (the governor), reportedly at the personal behest of one other single politician (Donald Trump), will serve as a U.S. senator almost half a year, until January 3, 2027, without ever being endorsed by the people of her state!
On the contrary, she has now been rejected by her state’s voters!
Yet because of her appointment, despite being rejected by her state’s people, she will have a powerful vote and voice for another two months to support the lame-duck agenda of the president who personally engineered her appointment.
I would suggest that if you don’t find this outrageous, you’re either politically biased or just not paying attention.
It appears pretty obvious that if a special South Carolina Senate election had been held on November 3 (as the 17th Amendment plainly, at a minimum, commands), Dr. Andrews would probably have won that election too. But ironies abound. If the special election had been held in August in the immediate wake of Senator Lindsey Graham’s death (more clearly in compliance with the 17th Amendment), with Dr. Andrews having much less opportunity to introduce herself to voters, it is far more likely that Senator Darline Graham might have won and earned the right to serve at least until January 3, 2027.
I pause to note that my argument obviously relies mainly on the text and structure of the 17th Amendment. What about the history and original understanding of the Amendment in 1913 during the Progressive Era?
I confess I’ve not yet been able to research that history in any depth. I’m still in the middle of moving to a new state and city. I don’t currently have any law school faculty position or office or research assistance. Most of my books and papers are in unopened boxes. I’m working out of a cramped temporary office in an upstairs “guest room” that’s actually just another store room filled with boxes.
I am unaware at this time of any specific historical evidence, pro or con, about how Americans in 1913 understood the meaning of “temporary appointments” or “writs of election” or exactly how soon special Senate elections should be held. I hope other researchers may be motivated to explore those issues.
But I submit there can be little doubt that the history of the 17th Amendment, viewed in broad perspective, strongly supports my interpretations and arguments here. The whole point of the Amendment was to stop the practice of politicians selecting senators and to allow the people to choose them instead in open and competitive elections.
If a single politician (a state governor) is able to unilaterally select who that state’s senator will be for up to two full years, that is obviously antithetical to the intent and meaning of the Amendment.
So what should now be done in South Carolina?
I have nothing against Senator Darline Graham. In my opinion, she was by far the most preferable of the Republican contenders seeking to succeed her late brother. I am glad President Trump urged her appointment, urged that she run for the new term, and endorsed her over her Republican primary opponents.
There were certainly many issues on which I disagreed with her late brother, Senator Lindsey Graham. But those are dwarfed by my strong agreement with his stance on a central issue of our time: the defense of Ukrainian freedom against unprovoked Russian aggression. Senator Lindsey Graham was deservedly hailed as a hero by President Zelensky and the people of Ukraine and I salute him for his courageous consistency in that stance.
I also salute Senator Darline Graham for standing by the stance of her late brother on this issue. When President Trump announced his intention to broker a shameful deal with Russia’s dictator Vladimir Putin, a war criminal responsible for the deaths of an entire generation of young Russian men as well as countless Ukrainian soldiers and civilians (men, women, children, and infants), she publicly broke with the president who made her a senator and criticized the proposed deal.
The question now is how Senator Darline Graham wants to go down in history. Is it really worth it to her to persist in clinging to a Senate seat, in violation of the 17th Amendment, for which the people of her state rejected her? If she continues to serve until January 3, 2027, that would be a shameful and blatant violation of the U.S. Constitution.
If she wants to go down in history with any honor, if she has any self-respect, she will respect the verdict of her state’s people and resign immediately. She would dishonor herself, her late brother, and the people of her state if she were to continue serving and voting in support of President Trump’s agenda.
There is, unfortunately, no legal avenue I can see for Senator-elect Andrews to claim any right to take office before January 3, despite her resounding victory on November 3. There should have been a special Senate election, but there wasn’t. She might have won it, but it never happened, and we’ll never know for sure. As noted, Dr. Andrews might well have lost a special election held in the most timely compliance with the 17th Amendment, by late August.
The law cannot make up for those gaps.
But regardless of whether there is any legal basis for Senator-elect Andrews to take office now as senator, it is clearly unconstitutional for Senator Darline Graham to continue serving in that office. South Carolina’s willful defiance of the 17th Amendment unfortunately means that state may, for two months, lose half of its representation in the Senate.
However, there is one more possible path.
If Senator Darline Graham were to do the honorable thing by resigning now, nothing would prevent Governor McMaster, now serving the final months of a two-term career as governor, from also doing the honorable thing by appointing Dr. Andrews to the Senate vacancy, so she could start serving and representing the people of South Carolina who emphatically indicated on November 3 that she was their choice.
I’m not holding my breath. Are you?
