Sen. Tim Johnson (D-S.D.) appears to have suffered a stroke and remains under evaluation at George Washington University Hospital. Should Johnson have to resign because of illness, the governor of South Dakota, a Republican, could appoint a replacement from his own party, taking away the Democrats’ majority in the Senate and giving Vice President Dick Cheney the tie-breaking vote.
It’s possible that Johnson could become incapacitated but refuse to resign.
Should the 59-year-old Johnson’s health problem be serious enough to force him to resign from the Senate, according to the South Dakota secretary of state, the governor of South Dakota may appoint a replacement. The appointment would last until the next general election—in this case, 2008. Johnson’s term happens to expire in 2008.
The 17th amendment of the U.S. Constitution says state legislatures can give their governors the power to appoint someone else to take over, but only in the case of “vacancies.”
What’s a vacancy? Clearly death or resignation, but history suggests not much else. Serious illness doesn’t count.
The Senate historian’s office cites several examples of a senator being incapacitated for years and remaining in office.
Most recently, Sen. Karl Mundt (ironically, also from South Dakota) suffered a stroke in 1969 and was incapacitated, but he refused to step down. He remained in office until January 1973 when his term expired. Mundt was pressured repeatedly to step down during his illness, but he demanded that the governor promise to appoint his wife. The governor refused, and Mundt remained in office.