Can Freudenthal name a Democrat?

This post was by Richard Matthews on today's Daily Kos:

Is Governor Freudenthal (D-WY) actually required to pick a Republican to replace Sen. Thomas (R-WY)?

State law says so, but it may violate the U.S. Constitution.

The Seventeenth Amendment states, "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."

The U.S. Constitution thus gives the power to appoint exclusively to the "executive" of the state. It is unconstitutional for state law to restrict the governor's choice. The legislature cannot do the appointing itself, nor can it designate another party to make the choice for the governor.

The legislature can only choose to grant this power or not; they cannot restrict the power to appoint.

Only five states have such restrictions in their laws. Until now, these restrictions have not been tested by having a senator of one of these states die while the governor is of the opposite political party.