Virginia Sen. Tim Kaine’s seat may be vacant if Democratic presidential nominee Hillary Clinton is elected in November.
According to Section 24.2-207 of the Code of Virginia, when a U.S. Senate seat opens up, the governor “shall issue a writ of election to fill the vacancy for the remainder of the unexpired term.”
This election is held on the next succeeding November general election date, or on the second succeeding November general election date if the seat opens within 120 days prior to the next general election. The code also states that the governor “may make a temporary appointment to fill the vacancy until the qualified voters fill the same by election.”
Geoffrey Skelley, associate editor of Sabato's Crystal Ball, said even though there is no specified timeline on filling Kaine’s seat, it would likely be filled soon after the vacancy.
“In the scenario where Hillary Clinton wins, she would likely want the Virginia seat filled immediately, as the Senate may be very close to evenly split between Democrats and Republicans,” Skelley said in an email statement. “Kaine could resign the seat earlier, but there may be some important lame-duck session votes in December that he would like to participate in, so it seems unlikely that he would resign until the 114th Congress officially ends its session just before the New Year.”
Virginia Gov. Terry McAuliffe has the power to appoint a replacement for a vacant Senate seat. Since a vacancy would occur more than 120 days before the next November election, Skelley said there would be a special election in November 2017 to fill the final year of Kaine’s term.
“That means McAuliffe would likely appoint someone that wants to run in the 2017 special election,” Skelley said, “and someone capable of immediately turning around and running for reelection in the regularly-scheduled 2018 election for that seat, should the appointee win the 2017 special.”
University History Prof. George Gilliam said if the Democratic ticket wins in November and Kaine is elected vice president, he will likely surrender his Senate seat immediately.
“Those elected or appointed to executive branch positions usually resign their position in the Congress promptly,” Gilliam said in an email statement. “That permits their appointed successor to take office and accrue seniority ahead of those others who — having won a popular election — will take office the following year.”
In terms of possible replacements for Kaine, Skelley said this is an opportunity for McAuliffe to make history.
“At the top of that list is surely Rep. Bobby Scott of the 3rd Congressional District,” Skelley said. “The attraction of appointing Scott would not only be the history it would make — the first black Virginia senator — but also because of the potential boon to Democratic electoral fortunes that such a pick could have.”
Skelley also said that any legislation Kaine has introduced during the current 114th Congress could be passed by the Senate until the Congress officially ends in 2017.
“If Kaine remained in the Senate through the start of the 115th Congress for a few days, he could hypothetically introduce new legislation in that Congress,” Skelley said, “but that seems fairly unlikely as in this scenario he would be focused on the transition.”
Scott himself has not directly publically acknowledged himself as a potential nominee.
“Governor McAuliffe will have many qualified individuals to choose from to fill Tim Kaine’s Senate seat,” Scott said in a statement in the Washington Post. “I am confident the governor will make a good choice.”
Other possible replacements include Attorney General Mark Herring or Rep. Don Beyer of the 8th Congressional District, who previously won two statewide campaigns for lieutenant governor in 1989 and 1993.
However, University Politics Prof. Larry Sabato also suspects Scott will be the nominee.
“It is to the Democrats’ advantage to have an African-American senator on the ballot to boost their gubernatorial candidate, Lt. Gov. Ralph Northam, who is white,” Sabato said in an article on the University Center for Politics website. “At this early point, Republicans are more unsettled and have several aspirants for governor, and no doubt they will have multiple contenders for Senate as well — especially because incumbent U.S. House members will not have to give up their seats to run for the upper chamber in an odd-year special election.”
McAuliffe has not publically announced who he intends to nominate should Clinton and Kaine win the election.
Sam Coleman, assistant communications director for McAuliffe, said it was too soon for the governor to be considering his decision.
“Gov. McAuliffe has been pretty resolute with his stance on all of that which is that it’s not a question he’s even considering until November 9th,” Coleman said. “The elections is by no means determined yet, so to do anything else would be getting ahead of ourselves.”
Regarding what qualities McAuliffe would look for in Kaine’s successor, Coleman said for any nomination, the governor always seeks candidate best equipped to serve the Commonwealth of Virginia.
Representatives from Kaine’s office declined to comment on whom he may predict or prefer as a potential successor.
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