As it stands now, U.S. Sen. John Ensign has indicated he will not step down from his seat because of the revelation that he had an affair with a former campaign staffer. And while the story continues to swirl, it’s entirely possible he could weather the storm and perhaps even go on to win another term when he next stands for election in 2012.
But what if he did resign? What would happen then?
Everybody knows what the 17th Amendment has to say about vacancies in the Senate, right? Just in case you don’t read the Constitution for fun, here’s the relevant passage:
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
And, as it turns out, the Legislature of Nevada has so directed, in NRS 304.030, which reads:
Governor to appoint qualified person upon vacancy in office. In case of a vacancy in the office of United States Senator caused by death, resignation or otherwise, the Governor may appoint some qualified person to fill the vacancy, who shall hold office until the next general election and until his successor shall be elected and seated.
But you know what that section of the law doesn’t say? And further what the state Constitution doesn’t appear to prohibit? It doesn’t appear to prohibit the governor from appointing himself to the vacant Senate seat! And given that — despite his myriad flaws — Gibbons is still “a qualified person,” he could become the next United States senator with only two signatures, one on his appointment papers, and one on his letter of resignation.
Gibbons could also gain the seat in a slightly less douchey way, by resigning from office after having struck a deal to be appointed by Lt. Gov. Brian Krolicki — who would assume the duties of governor upon Gibbons’s resignation. Then again, Gibbons may not trust Krolicki, whom he has unjustly criticized in the past. (Wouldn’t it be funny if Gibbons quit only to see Krolicki appoint somebody else to the office? We sure think so!)
(Odd tangential note: The Legislature has specified that, in the event of a vacancy in one of Nevada’s House of Representatives seats, the governor may not make an appointment, but must instead call a special election.) 
Anyway, if Gibbons appointed himself to replace Ensign in the Senate, Krolicki would be governor, and the lieutenant governor’s office would simply remain vacant until the 2010 election. (SEE, update below.) But what happens if Krolicki is convicted of misusing state funds at his upcoming trial, assuming the now-disqualified attorney general’s office can find somebody to prosecute that trial? As a convicted felon, Krolicki would no longer be a qualified elector, and thus unable to hold an office of trust or profit under the state. That means the president pro tem of the state Senate would become governor.
Say hello to Gov. Michael A. Schneider, Nevada!
And, just in case you’re wondering, under NRS 233.080, if Schneider were somehow unable to fulfill the duties of the office, the next person in line would be the speaker of the Assembly, currently Barbara Buckley. (Her term of office continues until the day after the 2010 elections, even though there are no more legislative sessions scheduled to take place. We’re sure Buckley, who is thinking of running for governor in 2010, would love to run as the incumbent. After the speaker, the secretary of state — currently gubernatorial son Ross Miller — would take over. We’re sure former Gov. Bob Miller would be proud.
Of course, in the event of a catestrophic emergency and a vacancy in the office of governor, one in which none of the above-listed people are available to act as governor, the Legislature can call itself into special session and elect a governor. But we’re pretty sure a fling with a campaign aide — even one who is married to a good friend — isn’t a “catestrophic emergency” within the meaning of that statute.
UPDATE: Thanks to an eagle-eyed reader, we must correct something we said above: Should Gibbons appoint himself to the Senate, the office of governor would become vacant, and the lieutenant governor (in this case, Krolicki) would serve as acting governor. Krolicki would still occupy the office of lieutenant governor, however. (This was decided by the 1896 case of State ex rel Sadler v. LaGrave, in case you’re keeping score at home.) During the period Krolicki was serving as governor, the president pro tem of the state Senate would serve as presiding officer of the Senate.
And while we’re updating, something we forgot to include in the original post: Even if Gibbons were to appoint himself to the Senate, he’d still face voters next year. Gibbons would stand for election in 2010, to confirm the appointment, and then again in 2012, when Ensign’s six-year term expires. So, if Gov. 10 Percent was hoping to avoid voters for another three years, he’s got to think of something else.
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