CONNECTCOMMENTEMAILMORE
Federal appeals-court judges have agreed to decide whether Sen. Martha McSally can continue to serve until the 2020 election without having been elected to her seat by voters.
In December 2018, McSally, R-Ariz., was appointed by Gov. Doug Ducey to fill the Senate seat vacated by the Aug. 25, 2018, death of veteran Sen. John McCain, R-Ariz.
Now, McSally and Ducey are defendants in a lawsuit filed by a small group of Arizona voters from across the political spectrum that claims it’s unconstitutional for McSally to serve as senator for 27 months without being elected.
The plaintiffs, two Democrats, one Republican, one Independent and one Libertarian, are being represented by attorney Michael Kielsky, a former chairman of the Arizona Libertarian Party.
Ducey and McSally’s legal team has argued that there’s no need to rush the issue as several months remain until voters cast ballots in November 2020, giving the court time to decide on the issue, but 9th U.S. Circuit Court of Appeals judges decided recently that the case should be expedited.
In a short order filed on Aug. 1, appellate judges announced the case will be heard in November, opening the possibility of a special election for McSally’s seat before 2020.
James Gardner, a University at Buffalo law professor who studies election and constitutional law, said that while it is unusual for appellate judges to expedite cases, it is more common for cases to be expedited in courts at every level if the case is in the electoral domain, where time is usually of the essence.
Kielsky, attorney for the plaintiffs, told The Arizona Republic that while he’s glad the court is expediting the case, he doesn’t consider November to be soon enough.
To make up for lost time, Kielsky is hoping that the court issues a preliminary ruling within days of oral arguments.
“They will already have the briefs, they will already understand most of the arguments,” Kielsky said. “It would be unusual, but they certainly could do that. Especially if they are inclined to rule in our favor, we would urge them to do that immediately so that the state can immediately proceed to hold that special election.”
Sen. Martha McSally, R-Ariz., laid out priorities ranging from investing in infrastructure to combating addiction in her first Senate speech. C-SPAN 2
Ducey decision reflects ‘mainstream practice’
Plaintiffs in the lawsuit against Ducey and McSally argue that the U.S. Constitution requires Senate appointments to fill a vacancy to last only until an election can be held, and that if McSally’s appointment lasts two years, until the 2020 election, it wasn’t temporary.
“The state legislature may not substitute its own choice or the Governor’s choice for a choice made by the people of the State,” the lawsuit read.
Gardner, the law professor, said Ducey’s decision to hold McSally’s election during the next general election is mainstream practice among states, citing a count by the National Conference of State Legislatures that says 36 states currently fill vacancies in the U.S. Senate at the next regularly scheduled general election, with 14 states requiring a special election to be called.
“Arizona seems to be in the mainstream of practice, but that doesn’t make mainstream practice constitutional,” Gardner said.
Still, Gardner said he doesn’t see a compelling reason to think the text of the 17th Amendment, a pillar of the plaintiff’s argument, requires states to hold special elections.
The 17th Amendment says that when Senate vacancies occur, the state executive — the governor — shall issue a writ of election to fill the vacancy, which Ducey did in scheduling the special election for the seat for November 2020. The amendment says the executive can make temporary appointments “until the people fill the vacancies by election as the legislature may direct.”
If the appointment lasted through two election cycles, it might be more difficult for a state to explain why it couldn’t hold a special election, but that’s not the case in this scenario, Gardner said.
A lower court agreed with Gardner’s assessment.
In June, a U.S. District Court judge in Arizona dismissed the lawsuit against Ducey and McSally, which led to the case rising to the 9th Circuit Court of Appeals.
In a June 27 order, Judge Diane Humetewa wrote that the 17th Amendment “does not impose a temporal limit on the vacancy period, and certainly does not mandate an election be held ‘within one year’ of the vacancy.”
Humetewa wrote that holding a special election would place a cost burden on the people of Arizona, and that voter turnout would likely be lower in a special election than in a general election, neither of which is in the state’s interest.
Kielsky rejected those points, saying all elections are expensive, and that the law doesn’t require voters to turn out in high numbers for an election to be legitimate.
“It is what it is,” he said. “When it comes to elections, it is about presenting that opportunity.”
A special Senate election probably won’t happen
Gardner said that if the 9th Circuit Court of Appeals decides a special election is warranted, that does not mean a special election would be held in this instance. The judgment, he said, would likely be declaratory, meaning the decision would essentially be put on the books for future reference.
It’s not likely the court would issue an injunction compelling the state to hold a special election, even if they decided one was warranted, he said.
Kielsky said a declaratory judgment in favor of the plaintiffs would still be a win, even if it doesn’t result in a special election prior to November 2020.
“It’s not what we’re hoping for, but at least it would get us to the point of the court looking at the 17th Amendment,” he said, adding that a court opinion clarifying the meaning of the word “temporary” in that amendment is valuable going forward.
No matter the decision, parties in the case could askthe Supreme Court to review it.
In an interview Friday with Phoenix radio station KTAR (92.3 FM), McSally said she’s not worried about the court’s decision to expedite the case.
“The lawyers are tracking that,” she said. “I’m focused on doing my job and I’m honored to be in this position and grateful for the opportunity to serve Arizona.”
Politics Podcast: The Gaggle
CONNECTCOMMENTEMAILMORE
Read or Share this story: https://www.azcentral.com/story/news/politics/arizona/2019/08/09/9th-circuit-decide-martha-mcsally-appointment-last-until-2020-election/1968936001/
