A lawsuit filed in in federal court in Arizona claims that John McCain’s Senate seat must be filled quickly via a special election, and asks a judge to order one be held in six months. The suit asserts the 17th amendment to the Constitution allows only a temporary appointment, and requires a date set quickly for a special election.
If plaintiffs prevail, a special election could pit recently defeated Republican Martha McSally against another Democrat, although it’s likely the race wouldn’t be as tight as the recently concluded one that left Democrat Kyrsten Sinema victorious after a lengthy ballot-counting process.
The attorney leading the suit previously was part of a lawsuit in Illinois that argued the state’s vacancy-filling law—and Arizona Governor Doug Ducey’s actions—are unconstitutional. While the case lost at trial, the lawsuit prevailed in an appeal. The appeals court ordered new elections called. The Supreme Court declined to intervene. (The vacant seat was Barack Obama’s.)
Arizona law allows special elections for the Senate only during a general election in November every two years. The suit states this law is unconstitutional and thus the governor’s actions violated several constitutional protections. Attorneys argue that the Constitutional amendment removed the power from state legislatures to appoint senators, and only allowed legislators to give the state executive the ability to make temporary appointments.
The lawsuit’s lead attorney, Mike Persoon, of the Chicago public-interest law firm Despres, Schwartz, & Geoghegan, told the Arizona Republic, “We want to ensure that consistent with 17th Amendment that the people of Arizona get to elect a senator.” Fortune didn’t immediately receive a reply to a request for comment from the governor’s office.
McCain held his seat until his death. He died August 25, 2018, too late to schedule primaries and elect a new senator in the general elections held in the following November. Arizona Governor Doug Ducey, a Republican, appointed former GOP Senator Jon Kyl to fill the role. Kyl represented Arizona from 1995 to 2013 in the Senate.
Kyl said he might resign at the end of 2018, allowing Ducey to appoint another senator to fill the seat for two years until the 2020 election. Pundits have speculated that Ducey would pick McSally. This would give McSally a leg up in 2020 as an incumbent. Other names have also been floated.
The suit’s plaintiffs are five Arizona registered voters, with a variety of party affiliations.
