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I just published a short article with the Vermont Law Review Blog about filling U.S. Senate vacancies in Vermont—and specifically, the difficulty of imposing a workable same-party requirement to fill a (hypothetical) vacancy in Bernie's Senate seat. https://lawreview.vermontlaw.edu/filling-u-s-senate-vacancies-in-vermont-replacing-bernie-sanders-is-harder-than-it-seems/
Last year, when rumors abounded that Bernie Sanders might join Joe Biden's cabinet, and this year, with concerning reports about Patrick Leahy's health, the question of how to fill U.S. Senate vacancies in Vermont has been particularly important.
But it would be very hard to adopt a requirement that ensures that Sanders or Leahy are replaced with someone ideologically sympathetic, because the ways that OTHER states have built out their same-party requirements are totally inapplicable to Vermont.
While most states base their same-party requirements on party registration or nomination, those requirements would fail in Vermont. It doesn't have party registration, and because it allows multiple parties to nominate the same candidate, nomination wouldn't work, either.
There are some workarounds, but my ultimate conclusion is that this sort of requirement would end up totally failing, would be vulnerable to being overruled by the state supreme court, or could even run afoul of the Seventeenth Amendment. It's tough.
While same-party requirements are really common in filling state legislative vacancies, only a few have done so for U.S. Senate vacancies. So efforts to impose this requirement in Kentucky are getting a bit of news. https://twitter.com/joesonka/status/1361290571256594433?s=20
But these requirements are good! Senate seats, and control of the government, shouldn't be decided by whether states have Democratic or Republican governors. The choices made by voters, whether we agree with them or not, should govern how U.S. Senate vacancies are filled.
Yes, it's transparently political for Kentucky Republicans to try to take away Democratic Gov. Andy Beshear's power to fill U.S. Senate vacancies with anyone he wants—but Beshear shouldn't have that unlimited power in the first place.
