Stephen Sachs vs. Seth Barrett Tillman on Senator Butler's Residence [Updated] [Again]Michael Ramsey

At New Reform Club, Seth Barrett Tillman: Governor Newsom, Laphonza Butler, and the Constitution’s Plain Text.  On the core point: 

[N]ot just anyone can become a senator. Article I provides three basic qualifications.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of  the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. [Article I, Section 3, Clause 3]

The age-related qualification and the citizenship-related qualification apply to all would-be senators: elected senators and appointed senators. But the inhabitancy-related qualification only applies to elected senators. If a senator is appointed by a state’s governor, there is no inhabitancy-related qualification. Thus Governor Newsom is free to pick a non-Californian, including Laphonza Butler. This follows from the Constitution’s plain text.

It is not difficult to understand why the Framers of both the original Constitution of 1788 and the Seventeenth Amendment made this choice. ...

At Volokh Conspiracy, Stephen Sachs thinks it's a harder question.  On the "inhabitant" point: 

Under the Seventeenth Amendment, the senators from each state are "elected by the people thereof," with the following exception:

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.

That's what's happening here: California's legislature has allowed its governor to make a "temporary appointment[]," which will last until the next election. But that doesn't mean the residence requirement applies only to senators chosen by the people at large (or, say, that Newsom could choose to appoint somebody from Alaska or New York instead). The phrase "when elected" is broader than that, because it was adopted as part of the 1788 Constitution, when each state's senators were "chosen by the Legislature thereof" (Art. I, § 3, cl. 1), usually one legislative house at a time. So "elected" here means a whole process of official choice, not only some first-past-the-post vote by the general citizenry. And the 1788 Constitution also provided for executive appointments, in Art. I, § 3, cl. 2:

[I]f Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

The Seventeenth Amendment was adopted "in lieu of" the "chosen by the Legislature" requirement, as well as "so much of paragraph two of the same section as relates to the filling of vacancies." But it left the qualification requirements in Clause 3 intact. So the "when elected" requirement is still good law, and its most natural reading would include whatever form of official choice establishes a person as a putative senator.

 

I hadn't thought about this issue before, but on (fairly brief) reflection, I'm with Tillman.  As Sachs says, "elected" obviously must mean not just "elected by the people" because it appears in the original Constitution, which did not make Senators elected by the people.  But I think "elected" nonetheless means "chosen by a vote," though not necessarily a vote of the whole people.  A selection by the state legislature is an election (by a vote of the members of the legislature).  A selection by a single person is an "Appointment" (as in Art. I, § 3, cl. 2), not an election.  So Governor Newsom could indeed "choose to appoint [not elect!] somebody from Alaska or New York instead." Presumably in the ordinary course political factors would protect against that result, and in any event (as Professor Tillman says), it's only a temporary position.

 

UPDATE: Josh Blackman agrees: 

[U]nder the original design of the Constitution, if a Senate vacancy arose when the state legislature was in recess, "the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." Notice the language: "appointments," and not "elections."

The Seventeenth Amendment changed the method by which senators were chosen. Now, senators would be "elected by the people." But the Seventeenth Amendment still allowed the state executive "to make temporary appointments."

...

Elected means elected. And appointed means appointed. Both types of language (elected and appointed) language were used in the Constitution of 1788, and in Seventeenth Amendment.

FURTHER THOUGHTS: The textual contrast between appoint and elect in the Constitution is important because (on further thought) it seems clear that (at least in modern usage) "elect" some times does just mean "choose," including by a single person.  "He elected to take the lottery payment as a lump sum instead of spreading it out over multiple years."  In the context of selection for positions, especially political positions, though, I still think it has the connotation of "selection by a vote of multiple people" -- as confirmed by the Constitution's text itself.

FURTHER UPDATE: Professor Sachs responds here: Can a Marylander be the Senator from California? He has extensive originalist evidence, but on a fairly quick look, it does not seem that he's identified any situation in which an appointed person was unambiguously described as "elected."  Also, his view would lead to the conclusion that Supreme Court Justices and other federal judges are "elected", which seems odd to modern ears, and I would need to see some fairly strong evidence that this is how the founding generation described it.  At least most of the time, I think judges were described as appointed rather than elected (as were executive officers).

Professor Sachs' best evidence may be that apparently in 1809, the Senate investigated the residency of an appointed Senator, and found the person to have satisfied the residency requirement.  The Senate seems to have assumed the residency requirement applied.  It may be, though, that no one thought to raise the argument so it wasn't considered.

Aside: I have no particular stake in this debate and have not looked at the original sources closely, so I could easily be persuaded the other way -- I just haven't seen enough yet to overcome what seems like the best reading of the text on a quick look.