dissenting.
The majority holds that Governor Taft was required by Article I, § 2, cl. 4 of the U.S. Constitution to hold a special election to fill the vacancy caused by .the expulsion of Congressman James A. Traficant from the U.S. House of Representatives. I do not believe the United States Constitution required Governor Taft to hold a special election in the circumstances of this case and so I must dissent.
I.
Our Constitution grants limited, enumerated powers to the federal government, while reserving the remainder of the governing authority to the states. Beyond the unenumerated powers retained by the states, the Constitution delegates to them certain tasks necessary for the proper administration and functioning of the federal government. One such task is the duty imposed by Article I, § 2, cl. 4, which provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” U.S. Const., Art. I, § 2, cl. 4.
Although clause 4 uses the imperative “shall,” that should not be understood as a universal and absolute command to act without regard to the facts and circumstances that bear directly upon the purpose of Section 2. That is so, not only as a matter of common sense, but also because, under our Constitution, “[t]he States ... retain ‘a residuary and inviolable sovereignty.’ ... They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.” Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (quoting The Federalist No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)). In interpreting clause 4 and similar provisions of the federal Constitution, we are obligated to take cognizance of the principles of federalism and comity that inhere in our unique system of dual sovereignty. Implicit in these principles is the obvious proposition that the Constitution does not impose upon the states the obligation to take action, which, in the circumstances at hand, would be wasteful, imprudent, and manifestly ineffective to carry into effect the purpose of the constitutional mandate.
The authors of Clause 4 were not theoreticians given to creating mindless formalisms that, if applied literally, woodenly, or mechanistically, would require the states to take action in obedience to the verb “shall,” which, under the circumstances, is foolish, wasteful, and probably ineffective.
Neither constitutional “textualism,” “originalism,” nor any other interpretive “ism” requires that, in carrying out the mandate of Clause 4, a Governor abandon all common sense and reasonableness and become, instead, a mere issuing clerk when a “vacanc[yj happen[s]” in a state’s congressional representation.
As Justice Oliver Wendell Holmes, speaking for the U.S. Supreme Court, stated, albeit with regard to a different constitutional provision:
The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.
Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 75 L.Ed. 482 (1931). That “play in its joints” must cer*652tainly include a Governor’s discretion to respond to the mandatory language of Clause 4 in a reasonably sensible manner.
II..
With these principles in mind, I conclude that, given the circumstances Governor Taft faced when former Congressman Traficant was expelled from Congress, he was not required under clause 4 to call a special election. The vacancy in the 17th district “happen[ed]” on July 24, 2002, slightly more than three'-months before the general election and less than six months before the end of- the congressional term.
After taking into account the public notice requirements of Ohio’s election laws and the need for a primary election and a general election, Governor Taft concluded, and the plaintiff has conceded, that the earliest practical date on which a special election could have been held was November 5, 2002, the date of- the general election. In order to have held a special election on the date of the general election, the financially strapped counties that comprised the 17th district would have been required to expend significant amounts of money and effort to give notice of the vacancy to potential candidates, print primary as well as general election ballots, pay additional election workers to staff the polling stations, certify the results, and allow for possible challenges.
In addition to these demands on the resources of the affected Ohio counties, the Governor was faced with a unique circumstance that could only have added further confusion to the already confusing necessity of conducting a special election together with the regular general election. As the majority points out, the 17th district was redrawn in 2002. The “old” 17th district represented by Traficant comprised Ma-honing and Columbiana Counties and parts of Trumbull County. But the decennial 1990 census required reapportionment and resulted in a “new” 17th district comprising parts of Mahoning, Trumbull, Portage, and Summit Counties. Consequently, on election day, some voters in the affected counties would have had the' option of voting for two congressional candidates, neither of whom was an incumbent 17th district congressman: one to fill the short-term vacancy in the old 17th district and another to represent the new 17th district in the next session of Congress. Adding to the confusion, voters whose precincts were recently added to the 17th district would have been eligible to vote for only one candidate and could not have participated at all in the special election. With this confusing array of possibilities, candidates and election workers would have faced the formidable task of. explaining to voters why some of .them were being asked to take the extraordinary step of voting for two congressional representatives, while their neighbors were being asked to vote for only one.
Despite the obvious cost and confusion, a special election might nevertheless have been required were it not for the very real likelihood that Congressman Trafieant’s replacement would have arrived too late to represent the citizens of the' 17th district. Because Ohio election law imposes certain delays for canvassing (Ohio Rev.Code Ann. § 3505.32 (Anderson Supp.2003)), counting overseas ballots (Ohio Rev.Code Ann. § 3509.05 (Anderson 1996)), and permitting applications for a recount (Ohio Rev. Code Ann. § 3515.02 (Anderson 1996)), the earliest the special election could have been certified, and, therefore, the earliest any newly elected representative could have participated in the business of the House, was on November 25, 2002. See Ohio Rev.Code Ann. § 3505.38 (Anderson 1996). Against this backdrop, Governor Taft — unless Clause 4 renders him a mind*653less automaton — had to consider, in addition to cost and voter confusion, that, at the time the ACLU filed its complaint, the House was scheduled to adjourn sine die on October 3, 2002, almost two months before any newly elected representative from the 17th district could have taken his or her seat. He would also have been obligated to consider that since 1933, the year in which the Congress changed its start date to January 3, the House has only reconvened after the general election approximately one out of every three times.
At oral argument before the district court, the ACLU speculated that a special election “could have” permitted a newly elected representative from the 17th district to vote in one of these infrequent lame duck sessions of Congress. In fact, as proved by later events, Congress did reconvene for a lame duck session. However, it adjourned on November 22, 2002, three days before a newly elected representative from the 17th district could have taken his or her seat. Although the majority implies otherwise, there was never any possibility that the 17th district could have been represented in the House votes on the Iraq war resolution, which took place on October 10, or on the creation of the Department of Homeland Security, which took place on November 13. See Op. at 649 n. 5. Nor, contrary to the majority’s contention, is there any evidence in the record that the citizens of the 17th district suffered from “diminished constituent services” as a result of the Governor’s refusal to hold a special election. Op. at 644. House Rule 2(i)(l) provides that, in the event of a vacancy, the Clerk of the House of Representatives shall continue to supervise a congressman’s staff, thereby ensuring the continuation of constituent services. Moreover, when questioned by the district court on this issue, the ACLU expressly disavowed any injury related to constituent services.
III.
Governor Taft was undoubtedly bound by the language of Clause 4, but implicit in that Section is the duty to exercise a limited discretion to assure that the execution of the mandate does not, under the circumstances, amount to a wasteful, unduly confusing, and very probably ineffective and useless election.
Given the substantial cost of a special election, the likelihood of confusion, and the high probability, as proved by later events, that a newly elected representative would not have been able to take his or her seat, I do not believe that Governor Taft was required to hold a special election to fill the vacancy caused by the expulsion of Congressman James Traficant from the House. Holding a special election under these circumstances would have been absurd and meaningless, and in holding that the Governor was obligated to do so, this court pays no more than mere lip service to those principles of federalism and comity that are inherent in the Constitution. What’s worse perhaps, under its “capable of repetition, while evading review” exercise of jurisdiction, Op. at 646, the court implicitly mandates mindless compliance with Clause 4 in the future, in an even more absurd and unreasonable circumstance.
I respectfully dissent.