Are appointments of Senators unconstitutional?

Thomas Geoghegan, a well-known liberal lawyer who is running for Congress in Illinois, had an op-ed piece in The New York Times yesterday that raised a question I must admit I hadn't known was even a question: are appointments by governors to fill Senate vacancies unconstitutional?

The 17th Amendment to the U.S. Constitution, adopted in 1913 to require the election of Senators by the people, not by state legislatures, also requires governors to "issue writs of elections" when Senate vacancies occur. It then adds this proviso: "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."

According to Geoghegan, "the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines." It does not cancel the requirement to "issue writs of elections."

"Yet the current practice in virtually every state flips the proviso to override the main clause," Geoghegan notes, a practice that "frustrates the whole democratic thrust of the amendment."

Geoghegan points out that the Supreme Court has never ruled definitively on this practice, even though its been going on for decades. He says the only precedent comes from a decision by a federal appeals panel (Valenti v. Rockefeller) upholding the Governor of New York's decision to fill the vacancy created by Robert F. Kennedy's murder. That decision rested on the fact that Kennedy's death in June did not leave enough time to hold a primary prior to an election in November 1968.

This is fascinating. If Geoghegan is right, someone might be able to challenge the constitutionality of Rod Blagojevich's appointment of Roland Burris (or any other gubernatorial appointment). Any thoughts on this?