Arizona Judge Approves of 2020 Special Election to Fill McCain’s Senate Seat

A district judge in Arizona ruled that Senator Martha McSally, appointed to the seat by Arizona Governor Doug Ducey, can remain in the position until a special election in 2020. (AP Photo/Matt York)

(CN) – An Arizona federal judge ruled Thursday that a former state representative appointed last year to fill John McCain’s vacant U.S. Senate seat can remain in the position, despite a lawsuit from a group that claims the governor unconstitutionally bypassed voters to fill the seat. 

U.S. District Judge Diane Humetewa determined that Senator Martha McSally can occupy the senate seat until a special election in 2020. Humetewa considered the cost and inconvenience to Arizona taxpayers in her ruling.

McCain died in August last year, and Arizona Governor Doug Ducey appointed former Senator Jon Kyl to the seat. However, Kyl resigned in December and Ducey appointed McSally to the seat.

McCain’s term was set to end in 2023, and the winner of the special election will serve out McCain’s remaining term. 

On Thursday, Humetewa dismissed the lawsuit from a group of Arizona voters and found that, by Arizona law, Ducey can fill a vacant seat on a “temporary” basis, even if the interim period is 27 months long.

The lawsuit claims that Ducey violated the Seventeenth Amendment when he filled McCain’s seat without an immediate special election. 

While seats in the U.S. House of Representatives can only be filled by a special election, the Seventeenth Amendment gives state legislatures the authority to establish procedures for filling vacancies in the Senate.

McCain died three days before the primary election scheduled for August 2018, and the vacancy occurred 150 days or less before the next regular primary election date.

Plaintiffs asked the court to order Ducey to issue a writ of election that would call for a special election at the earliest possible date. Later, plaintiffs amended their complaint to ask for a special election within one year of the Senate seat becoming vacant, which Humetewa said hurt their argument.

“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,” Humetewa said in her 25-page ruling.

Humetewa found in favor of the state’s argument that voter turnout must be considered when calling for a special election, which historically sees low numbers at the polls. For example, the May 2016 special election had a 31% turnout.

“While plaintiffs argue the reasons cited by defendants are not legitimate reasons, it is apparent that defendants seek to increase rather than suppress the right to vote, as evidenced by the above data which shows drastically reduced voting rates at recent special elections as opposed to general elections,” Humetewa said in the ruling. 

The cost to taxpayers also factored into Humetewa’s decision.

She noted that there would have to be a primary election in addition to the special election under the plaintiffs’ proposed time frame. 

The 2016 special election cost Arizona taxpayers about $6.5 million and did not require a primary election. The 2018 House vacancy special election, which was only held in Maricopa County, cost about $2.7 million.

Waiting until November 2020 to fill the seat would be no additional cost to Arizona taxpayers.

Humetewa also considered voter fatigue and confusion. 

“Other inconveniences to all Arizona citizens include the potential for months of highly politicized advertising leading up to the special elections, which would otherwise not occur at this time, and not allowing adequate time for voters to make an informed voting decision,” Humetewa said.

“There is simply no delay of Plaintiffs’ right to vote,” she added. “The Seventeenth Amendment does not mandate that a special election take place within a certain time frame. Rather, it allows the election to be held ‘as the legislature may direct.’”

The Plaintiffs’ attorney did not immediately respond to a request for comment Friday.

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