Now What?

U.S. Senator Daniel K. Inouye died on December 17, 2012, leaving Hawaii without seniority in the US Senate.
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Daniel K. Inouye

ROBERT THOMAS – Hawaii’s senior U.S. Senator, Daniel K. Inouye died this week. We can’t add much to the remembrances pouring in about this war hero, trailblazer, and political icon, so we’ll just address what we know, the law regarding how the vacancy in the U.S. Senate will be filled. Mark Murakami and I did some quick research, and here is what we came up with.

The starting point is the Seventeenth Amendment to the U.S. Constitution, which provides, in relevant part:


When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The “executive authority” under the Hawaii Constitition (article V, § 1) is the Governor. The Hawaii legislature has empowered the Governor to make a temporary appointment to flll the office in Haw. Rev. Stat § 17-1, as follows.

§ 17-1.  United States senator.

When a vacancy occurs in the office of United States senator, the vacancy shall be filled for the unexpired term at the following state general election; provided that the vacancy occurs not later than 4:30 p.m. on the sixtieth day prior to the primary for nominating candidates to be voted for at the election; otherwise at the state general election next following. The chief election officer shall issue a proclamation designating the election for filling the vacancy. Pending the election, the governor shall make a temporary appointment to fill the vacancy by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent. The appointee shall serve until the election and qualification of the person duly elected to fill the vacancy and shall be, at the time of appointment, and shall have been, for at least six months immediately prior to the appointment, a member of the same political party as the prior incumbent. The appointee shall be a resident of the state. If the prior incumbent was not a member of any political party, the governor shall appoint a person who is not and has not been, for at least six months immediately prior to the appointment, a member of any political party. All candidates for the unexpired term shall be nominated and elected in accordance with this title.

So, the next step is for the Chief Election Officer, Scott Nago, to issue a proclamation designating the election for filling the vacancy, presumably the General Election in 2014. But, it would be only for the unexpired term of Senator Inouye whose term was going to expire in 2016. Senator Inouye was a Democrat, so after Mr. Nago makes the proclamation, the Democratic Party of the State of Hawaii must provide a list of three prospective appointees for the appointment, and Governor Abercrombie must select the new temporary senator.

If the Governor picks a sitting member of the U.S. House of Representatives, pursuant to art. 1 of the U.S. Constitution and Haw. Rev. Stat. § 17-2, a special election is required to fill that vacancy.

If the Governor picks himself to fill the Inouye seat, then the Hawaii Lieutenant Governor would become the Governor under Hawaii State Constitution art. V, section 4, and, by operation of Haw. Rev. Stat. § 26-2, the Senate President would become the Lieutenant Governor.

But putting aside the question of whether he should, can Governor Abercrombie appoint himself? Under the Hawaii State Constitution, “[t]he Governor shall not hold any other office or employment or profit under the State or the United States during the governor’s term of office.” Art. V, Section 1. That language would make it tough to do directly.



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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.


  1. Actually, having Governor Abercrombie to become the next Senator makes good sense. He's already done that and been there. He would be a great asset to this position. I do not support Colleen Hanabusa as the next Senator even though it was Senator Inouye's last wish. She is not qualified, does not possess the skills necessary nor the personality of the great Senator Inouye. I do believe that we need a strong voice in the Senate to carry on Senator Inouye's work, Governor Abercrombie, Lt. Governor Brian Schatz or Mayor Mufi Hanneman are the best choices. People can comment all they want to but in the end everyone must agree that unless we have a strong Democrat voice in Congress, Hawaii will lose a lot of ground. We cannot let this happen and so I am suggesting that everyone call the Governor's office to state their preferences. This needs to happens so that Hawaii can continue to be heard in Washington. Governor's office: 586-0034

  2. Thanks Gayle! Another reason Neil should resign as gov. is to take his friend, & abolish the position he created for. Anyone remember this statement; “Gov. Neil Abercrombie on Thursday introduced his choice for a new position designed to improve Hawaii's health care and services. The governor chose Beth Giesting for the newly created position of Health care Transformation Coordinator. Giesting's role is to improve the health of Hawaii residents and the health care. “
    The pay is around 150K per year.

  3. This makes a good case for term limits. Members of congress should not become career politicians who hang onto power decade after decade. They should step aside after a few terms and give younger politicians a chance to serve. Inouye was in poor health and this deprived Hawaii of effective representation and it also deprived the State of a younger member rising up the ranks of power in Congress.

  4. The same race is going on again! Hanabusa has not taken a back seat to politics as I had wished she did. Schatz is already in office, so far, IMO has done a fairly good job, while new he now chairs two commitees. I'm supporting Schatz this election and not voting strictly for Democrats, too much of the old boy politics that have absolutely taken Hawaii on a downturn. We have a great election coming up with well qualified Republicans, I will not vote party ticket but take a more liberal attitude and vote on candidates that offer the best qualifications as well as the most sincerest desire to serve the people of Hawaii and put their best interests at heart. Hanabusa is a selfish person, out for only herself and never finishes a position gracely……

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