An appeal of U.S. District Court Judge Diane Humetewa's decision has, in effect, already been filed. As AZ Law reported last week, plaintiffs appealed the "effective denial" by failing to rule promptly - a theory fiercely contested by Governor Ducey's outside counsel. This week, the Ninth Circuit gave the sides until Monday, July 1, to explain whether an appealable order was in place and whether the appeal should be expedited.
Although plaintiffs' counsel has not yet responded to AZ Law's requests, it would seem likely that today's dismissal be immediately appealed in the already-open matter.
Judge Humetewa scolded plaintiffs' counsel for its efforts to nudge the Court into issuing a ruling. In a footnote, the judge noted that many of the delays in moving the case forward had been because of counsel's earlier scheduling conflicts.
As to the substance, the Judge agreed with the Governor's arguments that the cost of a special election and maximizing voter turnout are important State interests that help justify Arizona's special election statute. She addressed the 27-month period:
"Because Senator McCain died just days before the scheduled 2018 primary election,Chandler attorney Tom Ryan was not involved in the case, but has vocally opposed the law. He tells AZ Law:
over two years will pass before the voters have a chance to fill the seat by election. While this period may not be a short period of time, nothing in the Seventeenth Amendment limits the period of time an appointed senator can be in office. The 27-month period, on its own, is not unreasonable considering case precedent, and does not amount to an unreasonable restriction on Plaintiffs’ right to vote. Because there is no unreasonable restriction on Plaintiffs’ right to vote, Plaintiffs cannot establish a violation of their Constitutional rights and therefore, Count One will be dismissed."
The Arizona GOP was well-aware of Sen. McCain’s dire diagnosis and changed Title 16 to give Gov. Ducey the right to play around with a Senate appointment. This change has effectively deprived Arizona voters a say in many national issues including important appointments to the U.S. Supreme Court and other spots on the Federal bench.The law was changed by the Governor and the Republican-controlled legislature in early 2018, and went into effect mere weeks before Sen. McCain's passing.
The rest of the 25-page decision is presented below.