What happens if U.S. Sen. Cotton joins the Trump administration?

by Justin Allen (JAllen@wlj.com) 5,236 views 

U.S. Sen. Tom Cotton, R-Ark.

There have been numerous reports recently that U.S. Sen. Tom Cotton, R-Ark., might be in line for a cabinet appointment. Specifically, there is discussion that the Senator could become the director of the CIA.

Whether this will come to fruition, I have no idea. However, some of you out there might be interested in knowing the process for filling the Senate vacancy should Cotton make such a move.

Interestingly, the process for filling a vacancy in the U.S. Senate differs from that for filling a vacancy in the U.S. House of Representatives. The U.S. Constitution mandates, when there is a vacancy in the House, that it be filled as a result of an election. There is no process by which the Governor appoints a replacement, temporary or otherwise.

As for the Senate, the U.S. Constitution provides the states with some discretion in filling a vacancy. The Governor can fill the vacancy before an election is held, and an election to fill the vacancy can be a special one, or at the next general election. As you might guess, states vary in the process, although a majority of them call for an interim appointment by the Governor with the replacement being decided at a general election.

The Arkansas process is set forth in Amendment 29 to the Arkansas Constitution, and is mirrored by statute. (Ark. Code Ann. § 7-8-102 – as amended in 2017). That process calls for the following:
• A temporary appointment by the Governor who will serve the remainder of the term IF the office is scheduled to be filled at the next regular session;
• If the office is not scheduled to be filled at the next general election, an election to fill the vacancy will be held as follows:
— If the vacancy occurs more than 4 months before the next general election, it will be filled at that next general election and the winner will serve the remainder of the vacated term;
— If the vacancy occurs less than 4 months before the next general election, it will be filled at the general election after the next and the winner will serve the remainder of the vacated term;
• The temporary appointee would serve until the replacement election is held and that appointee is not eligible to run in the election.

So, what does that mean?

Taking the example at hand, if Sen. Cotton vacates his seat before July 6, 2018, the Governor will appointment an interim Senator, and the seat will be filled at the 2018 general election on Nov. 6. The winner would then serve the remainder of Sen. Cotton’s term, which expires at the end of 2020. That winner could then run for a full 6 year term in 2020.

If Sen. Cotton vacates his seat after July 6, 2018, the Governor will appoint an interim Senator to serve until is filled at the 2020 general election. Since 2020 is the expiration of Senator Cotton’s original term, whoever wins the 2020 election would presumably serve a 6 year term.

Engaging in a bit of speculation, it seems unlikely that Gov. Asa Hutchinson would enter a Senate race, especially if an election is in 2018. He is on an extremely solid path to reelection next year. If the election were held in 2020 instead, perhaps he would give it a consideration, but my guess is he would stay put and finish his second term as Governor.

Beyond that, it makes sense that Lt. Gov. Tim Griffin and one or more of our Congressional delegation, such as U.S. Reps. Steve Womack, R-Rogers, and French Hill, R-Little Rock, would give it a serious look. Perhaps Attorney General Leslie Rutledge would do the same. Finally, we cannot discount a member of the Arkansas General Assembly as a possible candidate.

Speculation aside, if Sen. Cotton makes the jump, the political scene in Arkansas will get very interesting as politicians begin considering the possibilities.
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Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.

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