No fewer than 11 of the 50 Democrats in the U.S. Senate would be replaced by a Republican governor should they be unable to continue serving in office.
It's a prospect no one wants to consider, but one that cannot be ignored. Senator Minority Leader Mitch McConnell and the Republicans would regain control of the Senate if a single one of those 11 became unable to serve and had their seat filled -- even in the short run -- with a Republican.
The subject came up briefly late in January when Democratic Senator Patrick Leahy of Vermont, who is 80, was briefly hospitalized after not feeling well while presiding over the opening of the Trump impeachment proceedings. Leahy recovered quickly, but for a moment, the forbidden topic got a little airing. That provided a grim reminder that control of the Senate could shift in a blink of an eye. Vermont's governor is a Republican, Phil Scott.
As to the prospect of losing a seat, there's not much President Joe Biden and Senate Democrats can do but pray it doesn't happen. Strategically, though, it's a strong reason to push their agenda with a sense of urgency and without an assumption that control of the Senate is safe through the end of 2022.
For example, it is common for both parties to urge judges approaching retirement age -- and, of course, again U.S. Supreme Court justices -- to consider stepping aside a little early to preclude the possibility of the other side filling key judicial posts. The tragic case of the late Justice Ruth Bader Ginsburg was just the most recent example of what can happen. Liberal Justice Stephen Breyer turns 83 in August.
Appointment of judges is just one aspect of Biden's agenda that would be impacted by a sudden shift in Senate power. Bottom line: Things that seem like they can wait until 2022 perhaps should not.
The process of filling Senate vacancies is governed by The Seventeenth Amendment to the Constitution, passed in 1913, which established direct election of senators, as well as a means of filling vacant Senate seats. The states were given latitude and their processes differ widely. In 45 states, the governor is empowered to make at least an interim appointment to fill a vacant Senate seat until a special election can take place. (None of the remaining five have Republican governors and Democratic senators.)
Most significantly, only six states have laws requiring a governor to appoint a replacement senator from that senator's political party. They are Arizona, Hawaii, Maryland, North Carolina, Utah and Wyoming. Those provisions protect four Democratic seats that otherwise would be jeopardized, two each in Arizona and Maryland. Without those laws, there would have been 15 Democrats vulnerable to a party switch.
That leaves seven states--with the aforementioned 11 Democratic senators--subject to replacement by a Republican governor. Six of the 11 senators are over 70 and nine are 62 or over. (Conversely, there are nine Republicans holding seats that would be filled by a Democratic governor, but those wouldn't alter control of the Senate.)
It is not a certainty that all of their governors would act to flip control of the Senate -- when Senator Bernie Sanders name was floated for Biden's cabinet, Scott said he'd appoint a replacement who would caucus with Democrats -- but it's a safe assumption that most or all would move to facilitate a change in power given the nation's polarized politics.
The following is a state-by-state breakdown of the 11 Senate seats that could be affected by appointments of a Republican governor, with the ages of the senators, the Republican governor and a brief description of the replacement process. (Source for process information is the Congressional Research Service).
GEORGIA: Senators Raphael Warnock, 51, and Jon Ossoff, 35; Governor Brian Kemp. The governor would fill Senate vacancies by appointment, with the temporary Senator serving the balance of the term or until a special election is held concurrently with the next statewide general election.
MASSACHUSETTS: Senators Edward Markey, 74, and Elizabeth Warren, 71; Governor Charlie Baker. In November, Baker threatened to veto any legislation changing the rules for a how a vacancy is made. That arose when Warren was being considered for the Biden Cabinet. The governor would call a special election to fill a Senate vacancy between 145 and 160 days after the vacancy occurs, unless the vacancy occurs after April 10 of an even-numbered year, in which case the special election is held at that year's general election.
MONTANA: Senator Jon Tester, 64; Governor Greg Gianforte. The governor would fill Senate vacancies by appointment, with the temporary Senator serving the balance of the term or until a special election is held concurrently with the next statewide general election.
NEW HAMPSHIRE: Senators Jeanne Shaheen, 74, and Maggie Hassan, 62; Governor Chris Sununu. The governor would fill Senate vacancies by appointment, with the temporary Senator serving the balance of the term or until a special election is held concurrently with the next statewide general election.
OHIO: Senator Sherrod Brown, 68; Governor Mike DeWine. The governor would fill Senate vacancies by appointment, with the temporary Senator serving the balance of the term or until a special election is held concurrently with the next statewide general election.
VERMONT: Senators Leahy, 80, and Sanders, 79; Governor Scott. As suggested, Scott is a wild card: He's a moderate who called for Donald Trump to resign or be removed on January 6. The governor would fill a Senate vacancy by appointment until a successor has been elected. The governor would call a special election, which is held within three months of the vacancy, except if the vacancy occurs within six months of a general election, in which case the special election is held at that election.
WEST VIRGINIA: Senator Joe Manchin, 73; Governor Jim Justice. Justice switched party affiliation from Democrat to Republican in 2017 at an event with Trump, but he supported Manchin's reelection in 2018. The governor would fill Senate vacancies by appointment, with the temporary Senator serving the balance of the term or until a special election is held concurrently with the next statewide general election.
Here are the 18 times a Senate seat has been vacated due to death or illness in the past four decades:
Johnny Isakson, Georgia, 2019 (resigned over health issues at 75)
John McCain, Arizona, 2018 (died of brain cancer at 81)
Thad Cochran, Mississippi, 2018 (resigned over health issues at 80)
Frank Lautenberg, New Jersey, 2013 (died of pneumonia at 89)
Daniel Inouye, Hawaii, 2012 (died of respiratory issues at 88)
Robert Byrd, West Virginia, 2010 (died of natural causes at 92)
Edward Kennedy, Massachusetts, 2009 (died of brain cancer at 77)
Craig L. Thomas, Wyoming, 2007 (died of leukemia at 74)
Paul D. Wellstone, Minnesota, 2002 (died in plane crash at 58)
Mel Carnahan, Missouri, 2000 (died in plane crash at 66, elected posthumously)
Paul Coverdell, Georgia, 2000 (died of cerebral hemorrhage at 61)
John H. Chafee, Rhode Island, 1999 (died of heart failure at 77)
Quentin Northrop Burdick, North Dakota, 1992 (died of heart failure at 84)
Henry John Heinz, III, Pennsylvania, 1991 (died in plane crash at 52)
Spark Masayuki Matsunaga, Hawaii, 1990 (died of prostate cancer at 73)
Edward Zorinsky, Nebraska, 1987 (died of heart attack at 58)
John East, North Carolina, 1986 (died of suicide at 55)
Henry M. Jackson, Washington, 1983 (died of aneurysm at 71)