Back in August 2023, I wrote about a potential Seventeenth Amendment conflict in Kentucky. Under Kentucky law, in the event of a Senate vacancy, the Governor could only appoint a temporary Senator of the same political party as the former Senator. The Kentucky Legislature has a Republican super-majority with a Democratic Governor. And the Governor indicated that he thought this constraint on his powers to appoint a Senator violated the Seventeenth Amendment. Vikram Amar suggested there were indeed problems. As history played out, Senator Mitch McConnell of Kentucky remains in office, so this issue was never tested.
However, the Kentucky legislature took another, even more potent step: it stripped the Governor of the power to appoint any temporary Senator. The Seventeenth Amendment does not require the Governor to even have this power. It provides, in part:
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.
