Whitmer mum on ‘critical’ Michigan Senate seat. Critics blame politics

• Kristen McDonald Rivet was elected to Congress five months ago, and Gov. Gretchen Whitmer has not called a special election to replace her 
• Delay means thousands of Michiganders have gone without a representative in the Michigan Senate
• Republicans contend they could flip the seat and upend Democratic control of the chamber

LANSING — It's been more than four months since residents in Saginaw, Midland and Bay City have had a state senator fighting for their interests at the Michigan Capitol. 

And Gov. Gretchen Whitmer, who could at any time call a special election to fill the vacancy in what had been a Democratic seat, has been tight-lipped about when that might happen — or why she hasn’t already done so.

Democrats’ ability to advance their agenda in the state Senate hangs in the balance, prompting cries of unfairness from Republicans in and outside the district who feel they are in a strong position to win the election — if one is called.

“There's 270,000 people in the Great Lakes bay area — they don't have representation in the Senate,” Senate Minority Leader Aric Nesbitt, R-Porter Township, told Bridge Michigan. 

The 35th state Senate seat was vacated by Democrat Kristin McDonald Rivet following her November election to the US House, where she was sworn in on Jan 3. 

Whitmer has yet to call a special election in the swing district, which includes areas that swung toward Republicans and President Donald Trump in the fall. 

Asked about the delay, Whitmer spokesperson Bobby Leddy said little: “We'll keep you posted when we have an announcement,” he told Bridge.

Observers allege partisan motives from the governor, who wasted little time calling special elections last year when House Democrats temporarily lost their narrow majority because two members had won election to municipal posts. 

In that case, Whitmer announced special elections 15 days after the November election, scheduling primaries for Jan. 30 and general elections on April 16. 

“I think one of the reasons that Whitmer has delayed calling a special (in the 35th Senate District) is because, obviously, she fears the Republicans are going to win it,” said Bill Ballenger, a political analyst and former GOP lawmaker in the region. 

A GOP victory would place the state Senate in a 19-19 split between Republicans and Democrats, who would still technically remain in charge of the chamber, with Lt. Gov. Garlin Gilchrist able to cast tie-breaking votes.

But Republicans could effectively block any contentious bills by simply directing one member to stay home. In that case, any bill subject to a 19-18 vote would fail, falling short of the 20 votes needed to pass. 

“It's just all political that they would rather not take a chance of having a tied Senate,” said Nesbitt, who’s also running for governor. 

What’s at stake

Nesbitt has for months called on Whitmer to schedule a special election to fill the seat, including in a Dec. 11 letter written before McDonald Rivet had left for Congress. He’s since taken to social media to call on the governor to act on a near-weekly basis.

Several House and Senate Republicans joined local residents for a protest at the state Capitol in late February on the night of Whitmer's State of the State address.

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Thomas Roy, a local Republican activist who organized the protest, said Mcdonald Rivet “was instrumental in doing some things” for the region and wants a new Senator like her to “tell us what’s going on” or be available if area residents have an issue.

The region’s representatives in the Michigan House “are picking up all the extra weight and I don't think they can do both,” he said. 

In the 2024 presidential election, President Donald Trump carried the three counties that contain the Senate district by about 10 percentage points, 20,000 votes.

But Democrats have — at least publicly — remained bullish on the possibility of holding on to the seat, which McDonald Rivet first won by close to 7 percentage points amid sweeping Democratic gains in 2022. Her office didn’t respond when asked by Bridge about her old seat.

While it’s “critical that we maintain that seat, we stand in an incredibly positive position when it comes to our chances of maintaining it,” Senate Majority Leader Winnie Brinks, D-Grand Rapids, said in a recent podcast interview. 

Despite the vacancy, Brinks said the Senate is handling constituent issues for the district in the interim and the district’s office is remaining staffed to handle the workload.

A 35th District special election could grind the Senate to a halt. Or at least a slower pace than it's already seen this year. 

That’s because to make legislation into law in the Senate, a successful vote requires approval from a majority of Senators “elected and serving.”

That was no problem for Democrats in the first two years of this Senate term, when they held a 20-18 seat advantage. Even without McDonald Rivet, Democrats’ 19 seats still constitutes a majority in the 37-member chamber.

But if Republicans win the 35th District, seat, they’d strike a 19-19 tie. On paper, that’d give Gilchrist, the president of the Senate, an opportunity to exercise his constitutional power and cast tie-breaking votes on party-line legislation. 

But that’s only if all the Senators show up for the vote. In a 19-18 vote, Democrats would not have a majority of the 38 Senators elected and serving, and Gilchrist could not cast a vote to bring them over the line, effectively killing legislation. 

Nesbitt has signaled that’s a tactic he’d wield liberally.

“It would ensure that any legislation that actually gets through the chamber would have to be bipartisan legislation,” he told Bridge. “I don't see why that's a bad thing.”

Factors to consider

The Michigan Constitution gives the governor power to call a special election to fill a vacancy in the Legislature or wait for the next general election. 

Steve Liedel, an elections attorney who has worked with Whitmer and was former Gov. Jennifer Granholm’s top lawyer, said special election dates are set at “different times for different reasons.” 

One factor that governors consider: Cost. Holding a special election can be expensive.

“In the Granholm administration, particularly, we had local units (of government) sometimes or local officials asking us to wait because of the cost,” Liedel told Bridge. “Or they wanted the person selected at a time when more voters are likely to vote in a higher turnout election.”

In Midland County, the only planned election is just a few weeks away, in May. John Keefer, the chief deputy clerk, said if they held a special election with nothing local on the ballot the state would bear the costs. But he doesn’t think that’ll happen in 2025.

“What I believe is going to happen is more like they’ll piggyback it on the election where we’ll already have one next year,” he said, referencing 2026.

Michigan’s system isn’t uncommon; 25 states have a similar approach, but some place limits on when the election must be called. Arkansas law requires the governor to call an election “without delay,” while the governor of California has 14 days once a vacancy occurs. 

In four states, the party who last held the seat picks an interim legislator internally. Michigan is relatively unique, however, in placing no timeframe on when the election for a replacement must happen.

Ultimately, Liedel told Bridge, “there’s certainly no one that would have the legal authority to force the governor to call an election if she were not to call one at all” and instead wait for regularly scheduled elections in 2026.

But John Bursch, a Republican attorney who was solicitor general under Attorney General Bill Schuette, argued that a continued delay by Whitmer could provoke a legal challenge as a “constitutional claim.”

“If the intention is to leave that seat open for two years to gain some sort of political advantage, that would be wrong,” Bursch said, hypothesizing that residents of the district could have grounds to bring a lawsuit. 

While Whitmer has typically acted quicker – her longest delay had been in 2021, when Whitmer waited 74 days to call a special election when then-Rep. Andrea Schroeder died, according to the MIRS subscription news service — one doesn’t have to travel back far in Michigan history to find a governor waiting longer.

After US Rep. John Conyers of Detroit resigned from Congress in December 2017 amid sexual harassment allegations, then-Gov. Rick Snyder was immediately said to be reviewing dates for a special election.

He continued to review the dates for months, triggering a federal lawsuit, which Snyder won. Conyers’ replacement – US Rep. Rashida Tlaib — was elected nearly 11 months after his resignation, in the November 2018 general election.

Special elections have been held for short terms, too. In July 2012, GOP congressman Thad McCotter abruptly resigned after failing to make the ballot for reelection. Snyder declared a special election, included in that year’s August primary and November general election, to fill the seat for less than two months.

This year, Whitmer also has an additional appointment to make, filling the vacancy created by the resignation of Michigan Supreme Court justice Beth Clement. 

In the meantime, residents of the 35th District are without a voice in the Senate.

“There's just a whole number of issues that, whether it's taxes, education or budget expenses, are being decided without representation,” Nesbitt said, adding a message for Whitmer: “Call the special election.”