Filling in the data on filling vacant legislative seats

Back in October of 2013, Niki Kelly wrote an article for the Ft. Wayne Journal Gazette analyzing the number of state legislators who first came into the General Assembly by way of a partisan caucus, rather than through a general election. It speaks to the thoroughness of her reporting (and the impact of the analysis) that five years later it’s still common to hear hallway denizens at the State House quote her finding that nearly 1 in 5 legislators first arrived there by bypassing the ballot box.

But that 19% statistic was in the context of the legislature as constituted in 2013.  It was the first time such an analysis had been widely published, and–probably because it was difficult to track down the numbers just for that specific group of 150 legislators, according to Kelly’s own account to me–also the last. And so as people learn about how robust my database is at CapitolAndWashington.com, it’s perhaps not surprising that the most oft-asked question I get is about updated numbers on caucus-elected legislators.

But before we dive into those numbers, a bit of history: Indiana’s 1851 Constitution gave the Governor the ability to call for a special election to fill legislative vacancies as needed. But because the legislature only met for about two months every other year under that document, vacancies generally weren’t noticed, and there was little perceived need to fill them. If a vacant Senate seat had more than two years left on the term, it would likely be filled at a special election held during the next general election; by contrast, House vacancies generally weren’t filled unless there was a pressing need for votes in a special session.

If we set aside the mass resignation of 51 Democrats in the March 1869 attempt to block ratification of the 15th Amendment (and subsequent special elections in which every member won re-election), under Indiana’s 1851 Constitution we have 216 legislative vacancies from 1852-1972. Of those, 92 were in the House and only 23 were filled via special election (just 25%). Meanwhile, of the 124 Senate vacancies, 93 were filled via special election (75%). Across both chambers, there were about 3.6 vacancies per biennium, and the average length of a vacancy was right around 11 months (336 days in the House, and 355 days in the Senate).

When voters approved a Constitutional amendment in 1970 that allowed the General Assembly to begin meeting annually, the logistics around filling vacancies suddenly became a pressing concern. Waiting until the next general election to hold a special election could mean two sessions might pass before a vacancy was filled in the Senate (and would never be filled in the House) thus robbing constituents of representation; but holding one-off special elections in relatively small districts could incur substantial costs in what would likely be low-turnout affairs. And so in 1972, Hoosiers voters approved another Constitutional amendment that allowed the General Assembly to sort through the issue and legislatively set the method for filling vacancies.

Ultimately, the method that was selected was the caucus process we’re familiar with today, which requires a seat be filled within 30 days, and has led to the average time of vacancy plummeting to just 20 days in both chambers. Since that law took effect, the caucus process has been utilized 108 times (the 109th will come Thursday evening in the HD82 caucus to replace Dave Ober). That translates into roughly 4.8 vacancies per biennium, a 33% increase over the pre-caucus period. The reason for that increase, though, might be a bit surprising.

To illustrate this, I’ve come up with four reasons for vacancies: A legislator has resigned for ostensibly non-political reasons; a legislator has died; a legislator assumed another elected office and had to vacate their seat in order to serve; or the legislator left for other political reasons, such as being appointed to a non-elected post by the Governor (either a state agency job or judicial appointment).

Most probably assume (as do some of the people interviewed in Kelly’s 2013 piece) that the caucus process incentivizes partisans to leave their seat early to ensure someone of the same party replaces them as an incumbent at the next election. If that were the case, though, you would expect the number of ostensibly non-political resignations to increase along with the overall vacancy rate.  But the data doesn’t bear that out, and in fact shows the exact opposite trend: In the pre-caucus era, there were about 2.26 resignations of this sort per biennium, but only 1.73 since (a 23% decrease). Similarly, I’ve noted in past pieces that the average length of service has dramatically increased since 1970, so it might be reasonable to assume that more legislators are dying in office as they are serving longer. But again, the data doesn’t bear that out: Legislative deaths barely rose at all, going from 1.13 to 1.28 per biennium.

What has changed, however, is an explosion in the number of legislators assuming other elected offices. Prior to 1972, vacancies for this reason happened an average of .05 times per biennium (once every 40 years) to 1.2 per biennium. While less exaggerated, the number of gubernatorial appointments to non-elected posts has driven up vacancies for other political reasons from .15 per biennium to .58 per biennium.

It’s worth noting, however, that those numbers can be slightly misleading: While 27 vacancies have been created by a member assuming another elected office, twelve of those were from House members winning caucuses for Senate vacancies (and 10 of those 12 first came into the General Assembly at the ballot box; only Sens. Dennis Kruse and Vanetta Becker have gone into both chambers by caucus). So rather than members leaving the General Assembly for greener pastures, members simply switching chambers is the most common reason for this sort of vacancy: Only six were vacated by members heading to Congress; five from members winning local elections; two from members being elected Lt. Governor; and two from members being appointed to statewide office.

And so, with all of that background out of the way, here’s where things stand today: When the special session convenes on May 14, there will be 29 legislators serving who first came into their current office via caucus (19.3%)–essentially identical to the numbers Kelly found five years ago.  But while eight in 2013 won caucuses as a result of death, only three are serving today after a death-related caucus. Additionally, three more had to win a general election before serving in a legislative session, and another three had previously won general elections in the House before moving to their current seat in the Senate.  That leaves 20 seats (about 13%) that were vacated by resignation and initially filled by someone who hadn’t yet faced voters in a legislative election.

In opting for caucuses instead of special elections 45 years ago, the General Assembly essentially determined that expediency was the most important factor in determining how vacancies were filled. From that perspective, they achieved their goal: The average length of vacancy has been cut down more than ten-fold, and it isn’t clear that we’d have that many fewer vacancies under a special elections system. For instance, the 4.8 seats per biennium that are currently vacated translates into a 3.2% vacancy rate; the U.S. House, which does require special elections to fill vacancies, is in roughly the same spot with a 2.5% vacancy rate over the last six Congresses. Ultimately, then, this becomes a question of governing philosophy that I’ll leave you to determine for yourself.

Selected Bibliography

  • Kelly, Niki. “Using caucuses to fill legislature raising issues ”, published in the Fort Wayne Journal Gazette on October 27, 2013
  • CapitolAndWashington.com legislative data on vacancies and replacements was analyzed, and will be compiled soon onto a standalone page

 

 

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