Legally Speaking: Arizona voters sue lawmakers over McCain’s Senate seat

Just when you thought lawsuits over elections and politicians were over, a new one has been filed in federal court in Arizona.

The plaintiffs, a group of Arizona voters, filed their lawsuit against Gov. Doug Ducey and Sen. Jon Kyl, requesting the court require an election to fill late Sen. John McCain’s seat “as required by the 17th Amendment.” The plaintiffs are comprised of a registered Democrat, Republican, Libertarian and an independent.

McCain was elected to a 6-year term in the 2016 election, with that term expiring on Jan. 3, 2023. McCain passed away on Aug. 25, 2018, in the middle of his term. Shortly after his death, Ducey appointed Kyl to serve in the seat, but Kyl has said he would only serve until January.

Under Arizona law, Ducey is empowered to appoint someone to fill the seat until the next general election — in 2020.

According to the complaint, the 17th Amendment to the U.S. Constitution provides:

“When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies, Provided, that the legislature of any state may empower the executive there to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

Under the 17th Amendment, the Arizona Legislature has the right to empower Ducey to make a temporary appointment to fill McCain’s seat, at least until the next regular election — or second next regular election depending on timing. That is exactly what Arizona has done and has codified in Arizona Revised Statute 16-222.

Under Arizona law,

• When a vacancy occurs in the office of U.S. Senate or House of Representatives by reason of death or resignation, the vacancy shall be filled at the next general election.

• If a vacancy in the office of the U.S. Senate occurs more than 150 days before the next regular primary election date, the person who is appointed shall continue to serve until the vacancy is filled at the next general election.

• If a Senate vacancy occurs 150 days or less before the next regular primary election date, the person who is appointed shall serve until the vacancy is filled at the second regular general election held after the vacancy occurs, and the person elected shall fill the remaining unexpired term of the vacated office.

The plaintiffs who filed the lawsuit are arguing that the Arizona law is unconstitutional because voters are entitled to elect their senator and not have one appointed for an extended period of time — in this case, almost two years.  They further argue that under the 17th Amendment, “the state legislature has no authority to mandate that a temporary appointee shall serve in lieu of or in preference to a senator directly elected by the people, beyond any period necessary to hold an orderly election.”

In other words, there is no reason to wait almost two years for voters to elect a new senator. A special election can be scheduled before November 2020.

The plaintiffs acknowledge Ducey has the right, under Arizona law, to appoint Kyl or someone else to fill the seat until November 2020, yet they argue the law is unconstitutional. They explain there are other circumstances and provisions that allow or dictate an election for a senator within six months. Since it is possible, and legal, in other circumstances, then it can and should be done here.

What’s the bottom line, #LegallySpeaking? It comes down to this: The plaintiffs claim Arizona’s law allowing Ducey to appoint Kyl to McCain’s seat until November 2020 deprives the people of their right to choose their own senator in violation of the U.S. Constitution. An election can and should be had before then to allow Arizona voters to choose their senator. It is understandable for the governor to appoint someone temporarily, but “temporarily” does not mean almost 28 months.

Plaintiffs make a strong argument that maybe it is time for this law to change.

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