Yesterday I noted the concern that Laphonza Butler—sworn in earlier today as a senator from California—remains under the Constitution a citizen of Maryland, not an "inhabitant" of California as Article I requires. (There are also arguments that she was not yet a California "elector" when appointed, as state law may require.) Because the U.S. Senate is "the Judge of the Elections, Returns and Qualifications of its own Members" under Art. I, § 5, cl. 1, it's also the only body that could declare Butler ineligible to serve.
So must it? Seth Tillman, Josh Blackman, and Mike Ramsey have argued that it doesn't really matter—that it's perfectly fine for this Marylander to represent California in the Senate. The Seventeenth Amendment provides for two routes to a Senate seat, being "elected by the people" or receiving a "temporary appointment[]" from the state executive. Because Article I's residence requirement applies to a senator "when elected," they argue that it's wholly inapplicable to appointments—and that Gov. Newsom could appoint someone from Alaska or New York if he wants to.
I'd discussed this argument briefly in my prior post, but it deserves response at greater length, especially as it seems to have persuaded some eminent folks. Even so, just as there's a danger in failing to read constitutional text carefully, there's also a danger of unconsciously importing a degree of precision that might not have been perceived at the time. The crucial "when elected" language comes, not from the Seventeenth Amendment (which speaks of senators "elected by the people"), but from the original Constitution. That text used terms such as "elected," "appointed," and "chosen" in occasionally overlapping ways—sometimes distinct, sometimes coextensive. Most importantly, that's how such words were actually read, whether in the Philadelphia Convention, in the Federalist, or in the early-nineteenth-century Senate, which in 1809 actually decided a contest on this issue in favor of requiring residence. By contrast, drawing new lines between election and appointment would make a hash of a variety of other constitutional provisions.
