How & When Will a Replacement for Rep. Elijah Cummings Be Chosen?

Elijah Cummings

Getty Elijah Cummings

Rep. Elijah Cummings has died at the age of 68. Cummings’ death came after a long battle with health problems, his wife shared. He was a longtime Democratic representative for Maryland’s 7th Congressional District and had played a key role in leading President Donald Trump’s impeachment process. Although no one can ever replace Cummings, at some point his seat in Congress will need to be replaced. Here’s a look at how that process works. It’s a long process that won’t conclude until sometime in 2020.

For U.S. representatives, the U.S. Constitution requires that replacements are chosen via a special election. This is different than Senators, where vacancies are often replaced right away by a governor’s appointment, depending on the laws of the state.

Article I, Section 2, Clause 4 of the Constitution requires a special election, so House replacements often take longer to happen than they do for the Senate. Clause 4 reads:

If a Representative leaves office or dies, the Governor of that State sets up another election.”

Because of this, state governors will not appoint a replacement right away for Cummings like was done for John McCain when he passed away in August 2018.

Instead, the governor of Maryland will call for a special election to replace Cummings’ seat. There will be a nominating process by political parties, primary elections, and a general election in Cummings’ district. This could take months.

Gov. Larry Hogan will announce the dates of the special primary election and the special general election within 10 days, NBC Washington reported. This requirement is dictated by Maryland Law: Title 8, Subtitle 7, § 8-710. You can read the full law here. The relevant quote is below.

if there is a vacancy in the office of Representative in Congress, the Governor shall issue a proclamation, within 10 days after the date that the vacancy occurs or becomes known to the Governor, declaring that a special primary election and a special general election shall be held to fill the vacancy.”

If Cummings had died within 60 days of a general election, there would be no special election for his seat and his election would be merged with the general election.

According to Maryland law, by October 27 Gov. Hogan must announce the dates of the special primary and special general election. The special primary must be at least 65 days after his announcement. The general election must then be at least 65 days after the primary. So it will be at least 130 days from today (or from October 27 at the longest) before a replacement for Cummings is elected.

Until that point, Cummings’ seat will remain open. According to NBC Washington, the seat will be open until March 2020 at the earliest. Cummings represents Maryland’s 7th Congressional District. This includes Baltimore, Catonsville, and Ellicott City. The region will likely elect a Democrat again, as it has since 1996. 

Interestingly, the Constitution has no requirement for replacing Senators – this is left to the states. When Sen. John McCain passed away, Arizona Republican Sen. Jon Kyl was appointed to take his place. McCain died in August, and Kyl took his place in September.  In December, Kyl resigned. Then in December, Martha McSally was appointed to replace McCain’s seat by Gov. Doug Ducey. In 2020, she will run in a special election for the remaining two years of McCain’s term.

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