If Wu resigns, what happens? (corrected and updated)

Kari Chisholm

I've been fielding lots of questions about what happens if Congressman David Wu resigns. (And for the record, he says he won't, though he won't run for re-election.)

Should a vacancy occur in a congressional seat in Oregon, here's the story:

• No, there's not a gubernatorial appointment. In fact, per the Constitution, every state has special elections for House vacancies. (For the Senate, most states have appointments - though Oregon does not.)

• Governor John Kitzhaber would, however, set the date of the special election on any date of his choosing.

• If that date is more than 80 days out from the resignation, there would be a special primary and a special general election.

• If that date is less than 80 days out from the resignation, the Democrats and Republicans would select their nominees through a convention - followed by a special general election.

So, what would Kitzhaber do?

That is unknown. But there is a general precedent over the last five decades, and specific Kitzhaber precedent.

• In 1960, Senator Richard Neuberger (D) died on March 9. Oregon held a special primary election in May and a special general election in November. Each was concurrent with the regular primary and the regular general election. (All four elections were won by his widow, Maurine Neuberger. Note that Oregon law at the time allowed for a short-term gubernatorial appointment. Governor Mark Hatfield appointed Justice Hall Lusk to the seat.)

• In 1964, Congressman Walter Norblad (R) died on September 20. As a result of the short time to the November election, party conventions were held. (Wendell Wyatt succeeded him.)

• In 1995, Senator Bob Packwood (R) resigned on September 7. Governor Kitzhaber called for a special primary election on December 5 and a special general election on January 30, 1996. (Ron Wyden succeeded him.)

• In 1996, Congressman Ron Wyden (D) resigned on February 5 (after being elected to the Senate.) Governor Kitzhaber called for a special primary election on April 2 and a special general election on May 21.

So, in three of four cases, Oregon held a special primary election - rather than party conventions. The only party convention was held because it was already so late in the election year. And in both cases that occurred under Governor Kitzhaber, he called for special primaries.

Want to read the law? Check out ORS 188.120.

One more thing: The new districts take effect on January 1, so any special election held before then would be conducted within the old district lines.

Correction, 9:30 a.m.: The redistricting law, SB 990, actually makes it crystal clear -- the new lines are effective immediately.

SECTION 3. { + (1) Except as provided in subsection (2) of this section, the amendments to ORS 188.140 by section 1 of this 2011 Act become operative on January 3, 2013.

(2) For the purposes of nominating or electing Representatives to the Congress of the United States, the amendments to ORS 188.140 by section 1 of this 2011 Act become operative on the effective date of this 2011 Act.

(3) For purposes of this section, nomination of candidates means the nomination of candidates by a major political party at the primary election as provided in ORS chapter 249 and the nomination of candidates by other than a major political party as provided in ORS chapter 249. + }

SECTION 4. { + This 2011 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2011 Act takes effect on its passage. + }

SB 990 was passed by the House and Senate, and signed by the Governor, on June 30, 2011. So, they're effective immediately. This will, of course, cause great consternation among the county clerks. I'm sure they'd like to have until the beginning of the year to draw new precincts, reassign voters in the voter database, etc. But they may not have as much time as they'd like.

Of course, there's another troublesome wrinkle. If Wu does resign, and there is a special election this fall, the election would be held under the new lines - but the new Member of Congress would represent the old district until January 3, 2013. There would be people who get to vote in that race, but would not be represented by that new Member. There would be others who don't get to vote in the race, but would be represented by that new Member. Pretty confusing, and a possible legal problem. (As the lawyers say, it ain't a ripe question yet, since there's been no resignation.)

Update, 11:45 a.m. Well, this just gets more and more confusing and interesting. I've just received word from the Elections Division that their official position is that any special election held this fall would be held under the old map. They are relying on guidance from Legislative Counsel and their DOJ counsel.

Update, 8/4 I now have more detail on the legal explanation. See this post.

By Kari Chisholm July 25, 2011