Thursday, February 27, 2020

BREAKING: 9th Circuit Rules Ducey's Handling Of Late-Sen. McCain's Seat Constitutional, 27 Months Of Appointments Stand

The recent Arizona law allowing Governor Doug Ducey to set the special election to fill the late Senator John McCain's seat 27 months after his passing is not unconstitutional, the Ninth Circuit Court of Appeals ruled today.

McCain died in August 2018, and the Governor has been able to appoint Jon Kyl and Martha McSally to each fill the office until a special election is held in November 2020 to fill the remainder of the term. (So, the winner in November will have to run for re-election in 2022.) Earlier in 2018, the Legislature had passed a law setting up this system.

Today, the Court decided that Arizona's law did not violate either the Seventeenth Amendment of the U.S. Constitution giving states the right to set the election laws for the Senate, nor the U.S. Supreme Court case that had previously found that a 29-month period between the vacancy and the election to fill was not unconstitutional.

Here is the Court's conclusion:
We interpret the Seventeenth Amendment, in light of Valenti and Rodriguez, to confer at least as much temporal discretion upon the States as was exercised by Arizona in
A.R.S. § 16-222 as applied to the vacancy created by Senator McCain’s death. Given this authorization by the Seventeenth Amendment, we further conclude that the vacancy election timing challenged here does not impermissibly burden the right to vote under the First and Fourteenth Amendments. 

AZ Law has reached out to the parties for comment, and will update this article as warranted.

h/t to Eric Spencer at Arizona Election Law for first noting this opinion.

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