Last updated November 22, 2024
As President Trump continues to announce Cabinet nominations for his incoming administration, a number of states will have special elections, or undergo an appointment process, to fill vacancies in the House of Representatives and Senate. Here are the processes and laws that govern filling vacancies in states where these nominees have served as members of Congress:
Constitutional Guidance - Senate
In 36 states, Senate vacancies are temporarily filled by gubernatorial appointment. A special election is then held coinciding with the next regularly scheduled election to replace the governor’s appointee.
In the other 14 states, a special election is required within a specified time frame (often before the next regularly scheduled election) to fill the vacancy. Of those 14 states, 8 allow for an interim gubernatorial appointment to serve between the time of the vacancy and the special election.
Though most states allow for the governor to make a temporary appointment, 6 states (Kentucky, North Dakota, Oklahoma, Oregon, Rhode Island, and Wisconsin) fill Senate vacancies exclusively through elections.
Constitutional Guidance - House of Representatives
If a House seat is vacated, the Constitution requires that vacancies be filled through a special election.
For a vacancy in the House, Article I, section 2, provides that the chief executive of each state is to call for an election to fill the vacancy. Federal law provides additional regulations for filling vacancies in the House. Title II, chapter 1, section 8 of the U.S. Code authorizes each state’s or territory’s legislature to determine the time for holding special elections in general.
State governors—“the Executive Authority”—are responsible for issuing orders for special elections.
Unlike the Senate, there is no constitutional provision for the appointment of interim Representatives to Congress.
Florida - Senate
There is no specified amount of time for Florida to hold a special election for a Senate vacancy. Pending Florida Senator Marco Rubio’s expected resignation to serve as Trump’s appointee for Secretary of State, Governor DeSantis may appoint a temporary replacement to serve as Florida’s second Senator until the seat is filled by regularly scheduled election in 2026.
According to a statement released by Governor DeSantis on Monday, November 18th, his selection to replace Rubio will be “likely made by the beginning of January.”
Florida - House
A special election or special primary election will be held if a vacancy occurs in the office of a member of the U.S. House of Representatives from Florida. Currently, Florida anticipates a potential vacancy in its federal delegation following President Trump’s announcement of Rep. Michael Waltz as his nominee for National Security Advisor. There is also a vacancy due to the resignation of Rep. Matt Gaetz from Congress.
Whenever a special election is required to fill any vacancy in office, the Governor, after consultation with the Secretary of State, shall issue an order declaring on what day the election shall be held and deliver the order to the Department of State.
It has been reported recently that Speaker of the House Mike Johnson, in a phone call with Florida Governor Ron DeSantis, commented “Let’s start the clock,” citing a Florida state law that provides an eight-week time period to select and fill a vacant seat once the governor orders a special election. “‘If we start the clock now, if you do the math, we may be able to fill that seat as early as Jan. 3 when we take the new Oath of Office for the new Congress,’ Johnson said.”
There are a variety of other considerations, based on Florida law, that must be taken into account with regard to the timeline for special elections:
A 2021 Florida law states that voters may only submit one mail-in ballot request per year, meaning that Florida voters will be required to submit new mail-in requests for any elections taking place after December 31st, 2024.
Florida law also requires that election supervisors throughout the state must issue mail-in ballots to military and overseas voters 45 days prior to any election.
Nominees for special elections, like regular elections, must be chosen through a primary election process under state primary laws. The Governor must provide a minimum of two weeks between the primary and special elections dates.
All Florida voters must also be given 30 days prior to election day to change their party affiliation.
New York - House
For U.S. House seats, state law requires that New York Governor Kathy Hochul issue a proclamation calling for a special election within 10 days of a vacancy, and schedule the election between 70 and 80 days after declaring the vacancy.
It should be noted that Rep. Elise Stefanik, whom Trump recently announced as his appointment to serve as Ambassador to the United Nations, has not officially resigned yet. The proceedings referenced above will be set into motion following an official announcement of resignation.