The constitutionality of Arizona’s law giving Governor Doug Ducey the right to control the U.S. Senate seat vacated by the passing of John McCain has been challenged in federal court. A group of plaintiffs led by William Tedards filed the action against Ducey and Senator Jon Kyl yesterday and asks that the Governor be required to call for a special election within six months. Their contention is that the 17th Amendment of the U.S. Constitution (text below) which requires that U.S. Senators be elected invalidates the Arizona law (also below) that the special election for a Senate vacancy can only be held at a biennial general election. McCain passed away in August, too late for Governor Ducey to add a primary and general election to be held by November 6, 2018. Instead, he appointed former Kyl to the seat, even as Kyl indicated that he might very well only stay in the position through the end of 2018. That would permit the Governor to make a new appointment for another two years, for a total of 28 months.
When asked by Arizona’s Politics about the timing of this action, nearly three months after the Kyl appointment, lead attorney Mike Persoon stated there was no plan to wait until after the November 6 election: “Lawsuits — particularly those brought by ordinary citizens — take some time to pull together. They rarely happen overnight. That said, the lawsuit is proceeding quickly.”
Persoon – who also represented the plaintiffs in a similar case in Illinois in 2010 – and local attorney Michael Kielsky have asked for a preliminary injunction which would order the Governor to call a special election within six months.
Arizona election attorney Tom Ryan has been speaking out on this subject since the Governor appointed Kyl. Today, he told Arizona’s Politics that it is about time: “the AZGOP in the Legislature monkeyed with the statute re: replacing a U.S. Senator to give Ducey this kind of power to make serial appointments. The purpose of the 17th Amendment was to give the power of direct election to the citizens of each state.”