With Montana’s lone congressmen, Ryan Zinke, on track to be secretary of the Interior in President-elect Donald Trump’s cabinet, Republicans and Democrats are making plans for a special election.
President-elect Donald Trump confirmed Wednesday the nomination the Republican representative and former Navy SEAL.
Zinke’s departure from the U.S. House would spark a scramble for a replacement. State law dictates that upon the resignation of a U.S. senator or representative, an interim representative would be appointed by the governor and that a special election be called to replace him or her within 85 to 100 days.
However, the Montana law, rewritten by the 2015 Legislature, is unconstitutional and won’t be followed. That was the conclusion Republicans and Democrats independently came to as they prepare to replace a U.S. representative for the first time in 47 years.
“The U.S. Constitution permits a senator to be appointed," said Jeff Essmann, Montana GOP chairman. "The Constitution requires a House representative to be elected. That’s why it’s always been called the people’s House."
Late Wednesday, Montana’s secretary of state, Democrat Linda McCulloch, was reporting the same. Montana would ignore the portion of state law requiring an interim appointment.
A senior official in the administration of House Speaker Paul Ryan explained that "Article 1, section 2 of the Constitution provides that vacancies in the House must be filled by election. And House Rules reflect that requirement; no member may be seated without a certificate of election and other rules and statutes reflect that as well. The fact that the 17th Amendment to the Constitution explicitly provides that state legislatures may “empower [a governor] to make temporary appointments [to the Senate] until the people fill the vacancies by election as the Legislature may direct,” demonstrates that House seats are to be left open until a special election is held."
Both Republicans and Democrats said they like their chances of winning a special election.
Montana Democratic Party Executive Director Nancy Keenan said her party would ask voters to use the special election to rebalance the political power scale that after November’s general election tips hard to the right. Only Democratic Gov. Steve Bullock survived a Republican housecleaning of state government offices Nov. 8. Republicans will control the presidency, House and Senate next year.
Democrats will assemble their county central committee members and select a candidate for the special election, Keenan said. Republicans use the same process. There wouldn't be a primary election.
It’s not clear how soon a special election might come, Keenan said. It all depends on if and when Zinke is confirmed. The Republican will likely not resign before then.
“The timing of this could be very quick. It could happen by February, when Trump forwards a lot of his nominations, or we could be in a Supreme Court battle as Donald Trump tries to take the big ones on,” Keenan said.
There has been a vacancy on the U.S. Supreme Court for most of the year because Senate Republicans have refused to consider a nominee from President Barack Obama. If Trump fills the court vacancy, Zinke's possible confirmation might take a while.
But it’s possible Zinke could be part of a half-dozen appointees vetted by the Senate and ready, when Trump takes office Jan. 20, for approval. Keenan said. Several of President Obama’s appointees were handled that way and approved quickly, she said.
Keenan said she couldn’t say who would run for the job. Superintendent of Public Instruction Denise Juneau, who challenged Ryan Zinke but lost by 16 percentage points Nov. 8, did not respond to a message from The Gazette inquiring about whether she would run again.
Republican Greg Gianforte, who lost his election challenge to Bullock by 4 percentage points, said becoming a candidate wasn’t on his mind currently.
“This is a great moment for Montana to have our own Ryan Zinke nominated to serve in President-elect Trump’s cabinet as Interior secretary,” Gianforte said in an email. "It's an honor for our state. I'm hoping that Ryan sees a swift confirmation process. Susan and I have appreciated the many calls of support and encouragement we have received from folks urging me to run if indeed there is a vacancy in our U.S. House seat. But right now, like many other Montanans, I'm hoping for more snow, filling the freezer with my hunting efforts and getting ready to celebrate Christmas with my family.”
Essmann said he couldn’t discuss potential candidates, but he has been hearing names tossed around. He was confident Republicans would keep the seat they’ve held for 20 years.
“The Republican Party in Montana is at its strongest point since 1928 in terms of holding elected offices,” Essmann said. “As long as our convention unites around a candidate who has the capacity to win, I expect to maintain the seat.”
The other election on the horizon that would be influenced by Zinke joining Trump’s cabinet is Montana’s 2018 U.S. Senate race. Zinke said he was considering a challenge to incumbent Democrat Jon Tester.
Keenan said Tester would campaign hard regardless of whether Zinke challenged him.
“I think Jon runs hard and strong every time and he takes nothing for granted,” Keenan said. “Whether it would be Zinke as his opponent, it was not going to be a cakewalk and Jon knows it.”
Tester issued a statement Wednesday afternoon congratulating Zinke.
"I want to congratulate Congressman Zinke on this high honor,” Tester said. “I'm pleased the president-elect nominated someone from the west for a post that's critically important to Montana's outdoor economy and way of life. I look forward to sitting down with Congressman Zinke to discuss how we can increase public access to public land, protect our Constitutional right to clean air and water, and uphold our trust responsibilities to Indian Country."