Could Sen. Mullin's Replacement Violate The "Caretaker's Oath" and Run Anyway?

Last week, President Trump fired DHS Secretary Kristi Noem and nominated Oklahoma's junior U.S. Senator Markwayne Mullin to the post. Assuming Sen. Mullin wins confirmation, he would have to resign his seat in the Senate before he can be sworn in as DHS Secretary (the US Constitution prohibits a person from serving in more than one branch at a time).

His resignation would trigger the provisions of 26 O.S. 12-101 in the Oklahoma statutes, which gives the Governor power to fill Senate vacancies pursuant to 51 O.S. 10 (C). That provision places two requirements on the appointee. First, they must have been a member of the same party as their predecessor for five years. Second, they must submit a written oath to the Secretary of State affirming that they will not run for the seat (a "Caretaker's Oath," in other words).

However, some Oklahomans have been making the case that this second requirement is unconstitutional, and that the person Gov. Stitt appoints could challenge the requirement and run for the seat anyway.

Although my firm's primary focus is on Oklahoma cannabis law, I also handle election law matters and constitutional questions. In fact, I represented U.S. Senate candidate Madison Horn in 2022 before the Oklahoma Election Board under similar circumstances. Her candidacy had been challenged by her opponent on the ground that Horn was not a registered Oklahoma voter. However, as the Election Board ruled in that matter, states cannot impose requirements for federal officials beyond the requirements contained in the Qualifications Clause of Article I of the Constitution.

By that logic, then, could Sen. Mullin's appointed replacement violate the Caretaker's Oath and run for the seat anyway?

It's tricky, because of the Seventeenth Amendment.

You might remember this from high school government, but when the United States first got started, state legislatures elected members of the US Senate. This changed with the Seventeenth Amendment, which gave the people of each state the right to elect their own senators.

The Amendment also changed how vacancies in the Senate are handled. Prior to the Seventeenth Amendment, Governors only appointed Senators to fill vacancies if they occurred while the state legislature wasn't in session. The Seventeenth Amendment changed this, and says, "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."

It's that last part that makes this question tough. On the one hand, the Qualifications Clause absolutely prohibits states from placing extra qualifications on members of Congress not included in Article I. (We can't impose term limits on our Congressional delegation, for instance.) But on the other hand, the Seventeenth Amendment gives state legislatures the authority to do two things: "Empower" the Governor to fill Senate vacancies temporarily. And "direct" how those vacancies shall be filled permanently.

The real question, then, is whether the powers granted to state legislatures in the Seventeenth Amendment override the prohibition in the Qualifications Clause against states placing additional requirements on Congressional candidates.

Here's how this would game out. Let's say Sen. Mullin is confirmed as DHS Secretary. This creates a vacancy in the Senate delegation, and Oklahoma law requires Gov. Stitt to appoint a replacement within thirty days.

Let's say Gov. Stitt appoints Harold Hamm as US Senator (he's asked for it, apparently). Hamm would have to file the Caretaker's Oath. But then let's say he breaks that oath and files to run for the open Senate seat anyway. Then let's say U.S Representative Kevin Hern, who's already announced he's running for the seat, files a challenge to Hamm's candidacy.

Rep. Hern argues Hamm is prohibited by state law from seeking the office. Hamm argues the prohibition is unconstitutional under the Qualifications Clause. Hern argues that would be true, except the legislature's authority to "empower" the Governor to appoint a replacement and "direct" how the vacancy shall be filled comes from the Seventeenth Amendment, and overrides the Article I prohibition on states imposing additional requirements on Congressional candidates.

Who wins Hern v. Hamm?

Unsurprisingly, there's not a ton of case law out there on the Seventeenth Amendment. Two relatively recent federal appellate cases (Judge v. Quinn, a Seventh Circuit case from 2010 and Tedards v. Ducey, a Ninth Circuit case from 2020) address related but distinct questions arising under the Seventeenth Amendment. (The plaintiffs in Tedard did argue a "same political party" requirement for the temporary Senate appointee violated the Qualifications Clause, but lost on standing.)

One thing that is clear to me, though, is that an appointee who does decide to break the Caretaker's Oath and run for this seat anyway could not be removed from that office. While Oklahoma law includes a host of methods by which a state official can be removed from office, none of those provisions apply to federal officials.

My instinct is that courts would ultimately uphold Oklahoma's procedure, and rule the Seventeenth Amendment acts as an exception to the Qualifications Clause for U.S. Senate vacancies, finding the Amendment expressly authorizes state legislatures to condition the Governor's appointment power through the oath requirement (or the same political party requirement), and to exclude from the subsequent election contest anyone appointed by the Governor to fill the vacancy.

If you have an election law matter, a cannabis law problem, or even a question about Oklahoma or United States constitutional law, feel free to contact me today.