Senate: Oct 3, 2023; Washington, DC, USA; Vice President Kamala Harris swears in Laphonza Butler to the U.S. Senate on Tuesday, Sept. 3, 2023, on Capitol Hill in Washington. California Gov. Gavin Newsom appointed Emily’s List president Laphonza Butler to fill the vacant U.S. Senate seat left by Sen. Dianne Feinstein, who died Thursday, Sept. 28, 2023 at age 90.. Mandatory. Credit: Jack Gruber-USA TODAY

Dianne Feinstein’s death, and the subsequent decision to fill her U.S. Senate seat with Laphonza Butler, led to criticism by other possible claimants. While Butler has announced that she will not be seeking a full term, the fact that the governor has the sole appointment power is viewed by some as a negative, undemocratic feature of politics.

U.S. Rep. Kevin Kiley proposed an easy solution to this problem: A constitutional amendment which would strip governors of the right to appoint senators and just have a special election on an accelerated schedule.

While all states have a special election to fill the remainder of a term, 37 of them, including California, time that election with the next statewide general election. In this case, that will take place on the same day as the regular election for the Senate seat (so the winner of the special election would only serve a few months).

Nine states require an accelerated special election, while four states completely bar appointments by governors altogether. Kiley’s legislation would force every state to use special elections instead.

Using an accelerated special election may seem more democratic, but paradoxically, it may be that a special election may actually lead to a less democratic outcome. Instead, appointing a replacement until the next regularly scheduled election may end up giving voters a greater long-term say in the process.

The numbers tell the tale. Over the last 60 years, 63 senators were appointed to their position after the death or resignation of their predecessor. Thirteen senators currently serving in office were originally appointed, rather than elected to the job – a number that includes both of California’s current senators. Some of these appointments were noteworthy figures, such as eventual Vice President Walter Mondale or Majority Leader George Mitchell.

But as a group they share a different distinction than most senators: They are vastly less likely to get elected to a full term.

Only 23 of the 61 Senators managed to win a term of office after their appointment, a 37% re-election rate, and 18 of them did not seek election (two, including Butler, have not yet faced voters). Twenty of them lost a re-election run, including eight who were defeated when they sought their party’s nomination.

This 54% re-election rate among those who are actually running is a striking contrast to what most senators face. In 2022, every single Senate incumbent running for re-election won. The rate of re-election has not dropped below 75% since 1980.

The problem with a special election is that frequently, though not always as California showed in both gubernatorial recalls, turnout may drop precipitously. The result is that only a fraction of the voters may actually weigh in on the Senate choice, giving the eventual winner a stranglehold on the position. As Feinstein and many other senators have shown, winning that first election can be a lifetime pass to success.

Other candidates are unlikely to mount a primary challenge against an elected official, but as history shows, an appointed senator is a much different picture.

An appointment is not a long-term salve – hence the need for a special election at the next date. One change that several states have made to limit shenanigans is requiring the governor to appoint a senator from the same party, which seven states currently require. This will at least prevent major policy changes simply due to a death.

Strange as it may seem, the poor re-election rate suggests that voters may have a better chance at making a long-term choice after a gubernatorial appointment.

This article was originally published by CalMatters. Joshua Spivak is a senior fellow at the Carey Institute for Government Reform at Wagner College and a senior research fellow at Berkeley Law’s California Constitution Center. He is the author of “Recall Elections: From Alexander Hamilton to Gavin Newsom.”