Tuesday, August 6, 2019

NEW: 9th Circuit Rejects Gov. Ducey Argument, Expedites Appeal Re: Special Election For McCain Senate Seat

The 9th Circuit rejected Doug Ducey's arguments late last week and ordered that the appeal challenging the Arizona Governor's control of the U.S. Senate seat previously held by John McCain be expedited. Nonetheless, oral argument on the demand for a special election will not be held before November.

AZ Law has been reporting on the twists and turns since the case was filed last November - several months after McCain passed away and the Governor had tapped former Senator Jon Kyl to (temporarily) fill the position. The passage of time has not been the friend of the plaintiffs who claim that the Senate succession law - passed by the Arizona Legislature during McCain's battle with glioblastoma - is unconstitutional.

Indeed, Ducey's attorneys explained to the 9th Circuit that expediting the appeal would not save much time and that we are already getting too close to the November 2020 special election to decide who will serve the last two years of McCain's term. After Kyl stepped down in December, Ducey appointed Martha McSally to serve for 2019 and 2020; McSally is running to serve out the following two years.

The Governor's opposition, submitted by the two outside law firms representing his office in this matter, states: "Simply, expediting briefing by approximately one month does not change the practical reality that Appellants are asking this Court to order a special statewide election that might advance the date to select the person to complete Senator McCain’s term by a few months, at most." It also echoes pointed comments from the District Court Judge that Plaintiffs' attorneys created some of the delays. (The Judge took a few months to rule that the new Arizona law did not violate the U.S. Constitution.)

The three-judge panel - two of whom are from Arizona - rejected the Governor's response without explanation. The initial appellate brief will be due on August 28, and the court is looking to set the expedited oral argument in November.

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