Here is the Delaware state statute that says the Governor appoints a temporary US Senator and that appointee’s term terminates upon the election (not swearing in) of a new Senator as to avoid a vacancy in the US Senate seat:
Title 15. Elections
Part V. Special, Municipal, and Other Elections
Chapter 73. Vacancy in Office of Representative in Congress, United States Senator or Presidential Elector
Subchapter II. United States Senator
§ 7321. Vacancy; temporary appointment; term
Whenever a vacancy shall happen by death, resignation or otherwise in the office of Senator from this State in the Senate of the United States, the Governor may make a temporary or ad interim appointment from among the qualified electors of this State of some person to fill such vacancy until the same shall be filled at the next ensuing general election in the manner prescribed by law. The office of such temporary appointee shall terminate upon the election, under this title, of a Senator from this State in the Senate of the United States to fill the vacancy.
Here is the Delaware Constitutional provision that prohibits a person from serving as US Senator and County Executive simultaneously:
Constitution of the State of Delaware
Article III. Executive
§ 11. County officers; qualifications; members of Congress, federal employees and other officers holding dual office
Section 11. No person shall be elected or appointed to an office within a county who shall not have a right to vote for a Representative in the General Assembly, and have been a resident therein one year next before his or her election or appointment, nor hold the office longer than he or she continues to reside in the county, unless herein otherwise provided.
No member of Congress, nor any person holding or exercising any office under the United States, except officers usually appointed by the courts of justice respectively and attorneys-at-law, shall at the same time hold or exercise any office of profit under this State, unless herein otherwise provided.
No person shall hold more than one of the following offices at the same time, to-wit: Secretary of State, Attorney-General, Insurance Commissioner, State Treasurer, Auditor of Accounts, Prothonotary, Clerk of the Peace, Register of Wills, Recorder, or Sheriff.
So technically speaking, as soon as the election results were certified (maybe as late as the 8th – don’t know exactly when Gov Markell issued the certificate), Chris Coons was elected US Senator and there was an implied resignation of his County Executive office. By continuing to act as County Exec, Mr. Coons may have been violating Delaware law.
So what’s the big deal? Here’s a few conspiracy theories:
- It’s possible that any county related decisions that Chris Coons has made in the last week could be challenged in court now. An unhappy vendor, employee or citizen could come back and say Mr. Coons didn’t have the authority to do whatever he (or his staff) did. They may not win, but they could make the county pay some hefty legal fees defending itself.
- It’s possible that any county council business that Paul Clark presided over could be challenged in court. Technically Council President Paul Clark automatically became County Executive as soon as the election results were certified (and Mr. Coons became Senator). Penrose Hollins, as president pro tem, should have been chairing the council meeting this past week.
- By law, the president pro tem (Mr. Hollins) has 10 days to report the Council President vacancy to the Dept. of Elections. They then must schedule a special election within 45 days. Depending on how you look at this, his 10 days are almost up.
- This could be a large plot by the Democrats (including the Governor) to delay the special election for our new Council President. They know a special election before Christmas favors the Republicans and delaying it until after New Year’s is in their favor. Turnout is critical – John Tobin, and the folks at Delaware Politics & Delaware Liberal have already started discussing it.
Mr. Coons plans to resign from his County Executive position via fax from Washington on Monday, moments before being ceremonially sworn in as a US Senator. This drama is unnecessary and it would have been better for all of us if Mr. Coons had immediately stepped down from his county post and taken a week of vacation.