Replacing Tom Coburn: Oklahoma's congressional special election laws

Tom Coburn is leaving the Senate two years early, evidently discouraged by his colleagues' unwillingness to take even modest steps to eliminate wasteful spending and redundant programs. On Wednesday (2014/01/15), Coburn said on the Mark Levin Show, "I've come to a conviction that you can't fix Washington within Washington. The only way we fix Washington is have a convention of the states and limit their power. Coburn points out that 70% of Senate members have never had a job outside of being a politician. He says the only way to get term limits is with a convention of the states, as suggested by Levin's book, The Liberty Amendments. If you don't believe America's spending problem can be fixed within Washington, why stick around?

So what now? How will his successor be chosen?

The last time this happened was in 1994, when Democrat U. S. Sen. David Boren resigned to become president of the University of Oklahoma. (Amazing to think that was 20 years ago.)

In order to ensure that Oklahoma continued to have two votes in the Senate, the Oklahoma Legislature passed a law providing for a U. S. Senator to submit an irrevocable letter of resignation for a date in the future and for the special election to replace him to happen during the normal election cycle. The law was passed with the emergency clause and took effect on May 26, 1994. Here is the relevant section of the law (26 O. S. 12-101) as it stood for the 1994 election:

A. Except as otherwise provided in this section, whenever a vacancy shall occur in the office of a member of the United States Senate or United States House of Representatives from Oklahoma, such vacancy shall be filled at a Special Election to be called by the Governor within thirty (30) days after such vacancy occurs.

B. No special election shall be called if the vacancy occurs after March 1 of any even-numbered year if the term of said office expires the following year. In such case, the candidate elected to said office at the regular General Election shall be appointed by the Governor to fill the unexpired term.

C. If in an even-numbered year an incumbent United States Senator with two (2) or more years remaining in the term for which the incumbent was elected shall file with the Oklahoma Secretary of State before July 1 a resignation in writing which states that the resignation will not become effective immediately, but rather will become effective on some date certain which date is after the General Election, but before the convening of the next term of Congress, the vacancy shall be filled by a special election which shall be held in that even-numbered year on the same dates as the regular Primary Election, Runoff Primary Election and General Election. The filing period for the special election shall be the regular filing period prescribed in Section 26-5-110 of this title. The person elected in the General Election of the special election shall take office on the date the resignation of the incumbent becomes effective and shall serve the remainder of the unexpired term.

If you followed that link, you'll notice that the above language was superseded as of 10/24/2001. When U. S. Rep. Steve Largent announced his intention to resign his seat in Congress to focus on his effort to succeed Gov. Frank Keating in the 2002 election, the legislature passed additional language to allow a special election to take place before Largent's irrevocable resignation would go into effect. Here is the section of law that was added during a special session:

D. If an incumbent United States Representative files with the Oklahoma Secretary of State an irrevocable resignation in writing on or before October 29, 2001, which states the resignation shall not become effective immediately, but will become effective on some date certain, the vacancy shall be filled by a special election to be called by the Governor. The Governor shall issue a proclamation in accordance with Section 12-102 of this title, and the filing period shall be held November 5, 6, and 7, 2001, and the primary election shall be held December 11, 2001. The runoff election shall be held January 8, 2002, and the general election shall be held February 12, 2002. In the event that a runoff election is not necessary, the General Election shall be held on January 8, 2002. The person elected in the General Election of the special election shall take office on the later of the date the resignation of the incumbent becomes effective or the date the results of the General Election have been certified by the State Election Board and shall serve the remainder of the unexpired term.

Since this language is specific to a particular window of time, it was cleaned up the following year by SB 826, which went into effect as normal legislation (no emergency clause) on November 1, 2002. Section D, specifically enacted for the 2001-2 1st District special election, was removed. 26 O. S. 12-101 leaving only standard language requiring a special election only when a vacancy occurs. Section C., dealing with Senate resignations, was generalized and moved to a new section of law, 26 O. S. 12-119:

Except as otherwise provided by law, an incumbent in any elective office for which a vacancy is filled by special election called by the Governor may file with the Oklahoma Secretary of State an irrevocable resignation in writing which states that the resignation will not become effective immediately, but rather will become effective on some date certain. Upon receipt of the irrevocable letter of resignation, the Governor shall set the date for the special election. The person elected at the special election shall take office on the later of the date of certification of the results of the special election or the date the resignation of the incumbent becomes effective and shall serve the remainder of the unexpired term.

Some additional tweaks were made in 2012 via SB 91, changing the date after which no special election would be called from March 1 in an even-numbered year (when the term expires the following year) to January 1, and adding some clarifying language. But this provision doesn't apply to Coburn's case, since his term doesn't expire until 2017.

26 O. S. 12-103 says that, if a special election under 12-102 occurs (a proclamation issued with respect to a 12-101 vacancy), there will be a primary, runoff, and general election to fill the vacancy, and if the vacancy occurs in an even-numbered year, the special election dates will line up with the regular dates. It is unclear whether this section would necessarily apply to elections to fill vacancies that haven't happened yet, under 12-119. I suspect that if there is any question about it, the legislature will act quickly to clarify matters so that the election can happen along with the normal cycle and the new senator can be sworn in as soon as Coburn's resignation takes effect.

If any statewide elected official (except for two corporation commissioners) or U. S. or Oklahoma House member wants to try to fill Tom Coburn's shoes, they'll have to give up the chance to run for re-election to their current position. There could be quite a shuffle if, say, Gov. Fallin and one or more congressmen decide to run for Senate.