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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Zinke appointment exposes potential flaw in state law

In this Oct. 20 photo, U.S. Rep. Ryan Zinke speaks with a supporter in Billings, Mont., during his re-election campaign. (Matt Brown / Associated Press)
By Matt Volz Associated Press

HELENA – Montana Rep. Ryan Zinke’s decision to join President-elect Donald Trump’s cabinet has exposed a potential constitutional flaw in the first test of a new state law on filling vacancies in the U.S. House and Senate.

The law calls for a special election to be held between 85 and 100 days of a vacancy. It also gives the governor the option of appointing a temporary replacement from the same political party of the departing representative or senator who would serve until the election results are certified.

However, Secretary of State Linda McCulloch says the U.S. Constitution allows only for the appointment of an interim senator, and not for an interim representative.

“The bill and subsequent annotation is contrary to the United States Constitution which requires a special election, but no appointment,” McCulloch said in a statement Wednesday.

Zinke will become Trump’s Interior Department secretary, according to an announcement by the president-elect’s transition team on Thursday. It is not clear when Zinke will vacate the U.S. House seat that he was re-elected to last month, but when he does, Democratic Gov. Steve Bullock will have to call a special election for voters to pick a replacement to serve out Zinke’s House term.

The state law also says Bullock “may” appoint an interim replacement from a list of three candidates selected by the state Republican Party. Bullock’s office, GOP chairman Jeff Essmann and political observers began to question that provision when Zinke’s potential departure from the House surfaced on Tuesday.

McCulloch’s statement asserting that the state law runs against the U.S. Constitution cites a 2003 Congressional Research Service memo to Congress that says the state executive’s authority to fill U.S. House vacancies is to issue a writ of election.

“The Constitution thus requires that all House vacancies be filled by special election,” the memo said. “There is no constitutional provision for the appointment of interim representatives.”

Bullock spokeswoman Ronja Abel said the governor would take a close look at the law when he returns from a meeting of the Western Governors Association in San Diego.

No lawsuit has been filed challenging the state law and a judge has not ruled on whether it is constitutional.

The bill that passed in 2015 had only three dissenting votes out of 150 Montana representatives and senators, and it was signed into law by Bullock. Essmann voted for the measure. The bill’s sponsor, Sen. Brad Hamlett, D-Cascade, did not immediately return a call for comment.

The law passed in the wake of Bullock appointing his former lieutenant governor, John Walsh, to the U.S. Senate in 2014 when Max Baucus left that office to become the U.S. ambassador to China. Republican leaders at the time criticized Bullock for making the appointment without adequate public comment.

Walsh withdrew as a candidate for the Senate seat later that year after reports surfaced that he had plagiarized much of a research paper at the Army War College.