Arizona voters sue to force special election for McCain’s seat

There’s something of an unwritten rule in the legal field which says that if you have a complaint to make – no matter how crazy – and enough money to cover the costs, there’s a lawyer out there who will take your case. This phenomenon may be on display out in Arizona this month, where a group of voters has brought suit against the Governor for doing his job under state law and the Constitution. They are seeking to force a special election for John McCain’s Senate seat rather than allowing Senator Jon Kyle (or whoever Governor Doug Ducey appoints to replace him if he retires next month) to serve until the next general election in 2020. (Washington Times)

A group of Arizona voters is suing Republican Gov. Doug Ducey to try to force him to call a special election to replace their late Sen. John McCain.

The federal lawsuit announced Thursday alleges that Ducey’s September appointment of Jon Kyl to fill the seat until the 2020 election violates the Constitution.

State law says a special election is to be held at the next general election date. Because McCain died on August 25 it was too late for this year’s November ballot.

The motive for this court maneuver is obvious. Democrats, having just flipped a Senate seat blue in a squeaker of an election, are feeling their oats and would like a shot at flipping McCain’s seat as well. In terms of naked politics, that’s obviously understandable, but this plan would require some substantial changes in the law.

Arizona is one of 36 states that fill vacated Senate seats at the next regularly scheduled general election. But the vacancy has to take place with sufficient time for an election to be held in regular order. John McCain passed away August 25th, only three days before the primary.

Without enough time to hold the election this year, the Governor was empowered to appoint a replacement to serve until the general election in 2020. This is the same as in a significant majority of states, with Arizona’s only unique feature being that the appointee has to be of the same party as the vacating (or deceased) Senator. In other words, there’s going to be a special election in 2020 and the winner of that race will serve out the remainder of McCain’s term until 2022. If another ten people after Jon Kyle retire or expire between now and then, Ducey will simply have to keep appointing more Republicans to fill the seat. (Unless Ducey appoints himself to the Senate seat, in which case the duty will fall on his successor.)

This is the same system which allowed New York Senator Kirsten Gillibrand to, by appointment, take a seat in the upper chamber in January of 2009 and serve a full two years before winning an election in 2010 (and another in 2012). One wonders if these disgruntled Arizona voters were terribly upset over that turn of events and would have been bringing a lawsuit if they lived in New York.