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

Nov 29, 2018, 3:05 PM
(AP photos)...
(AP photos)
(AP photos)

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.

Monica Lindstrom

(AP Photo/Eric Gay, File)...
Monica Lindstrom

Legally Speaking: Arizona remains in state of confusion regarding abortions

Eventually, Arizona will have clarity on abortion law. For now, KTAR legal expert Monica Lindstrom says it is in a state of confusion.
5 months ago
(AP Photo/Jose Luis Magana)...
Monica Lindstrom

Legally Speaking: Abortion no longer a constitutional right, states to make decision

Roe and Casey are overturned. There is no longer a constitutional right to abortion. However, the question of whether an abortion is legal has reverted back to the states for each of them to decide on their own.
6 months ago
(AP Photo/Jose Luis Magana)...
Monica Lindstrom

Legally Speaking: It will come down to the states, not Supreme Court, to rule on abortion legality

The issue of whether an abortion will be legal and any rules regarding it will revert back to the states, not the Supreme Court, for each of them to decide on their own, writes Monica Lindstrom.
7 months ago
Arizona State Courts Building (Arizona Governor's Office Photo)...
Monica Lindstrom

Legally Speaking: Brnovich appeal to Arizona Supreme Court makes sense

KTAR legal analyst Monica Lindstrom thinks it's a good move by Attorney General Mark Brnovich to petition the Arizona Supreme Court to hear his appeal in a case about laws that were ruled unconstitutional.
1 year ago
(File Photo by Matthew Hatcher/Getty Images)...
Monica Lindstrom

Legally Speaking: Why judge rejected Arizona ban on mask mandates

KTAR legal expert Monica Lindstrom explains the reasons behind a judge's decision to strike down Arizona's ban on face mask mandates.
1 year ago
(Facebook File Photo/Phoenix Police Department)...
Monica Lindstrom

Legally Speaking: Police may need to be part of Phoenix oversight office

Phoenix's requirement that no current or former law enforcement be part of a new police oversight office appears to be in direct conflict with recently signed Arizona laws, writes KTAR News legal expert Monica Lindstrom.
2 years ago

Sponsored Articles

(Photo via MLB's Arizona Fall League / Twitter)...
Arizona Fall League

Top prospects to watch at this year’s Arizona Fall League

One of the most exciting elements of the MLB offseason is the Arizona Fall League, which began its 30th season Monday.
Quantum Fiber

Stream 4K and more with powerful, high-speed fiber internet

Picking which streaming services to subscribe to are difficult choices, and there is no room for internet that cannot handle increased demands.
Quantum Fiber

How high-speed fiber internet can improve everyday life

Quantum Fiber supplies unlimited data with speeds up to 940 mbps, enough to share 4K videos with coworkers 20 times faster than a cable.
Legally Speaking: Arizona voters sue lawmakers over McCain’s Senate seat