Is Senator McSally Unconstitutional?

An interesting Seventeenth Amendment issue is raised by this Atlantic article by Professor Garrett Epps.  Epps contends that the Arizona law which permitted the governor to appoint Martha McSally to fill the vacant senate seat arising from the death of Senator John McCain is unconstitutional. A new lawsuit filed in Arizona federal court, Tedards v. Ducey, seeks to force the governor to call an immediate special election to fill the vacancy.

To understand the issue, we should begin with the text of the Seventeenth Amendment:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This seemingly straightforward language turns out to be more complicated on closer inspection. For example, what happens if a vacancy arises so close to the end of a senate term it is impossible or impractical to call a special election to fill the remainder of the term? A literal reading of the constitutional language might suggest that in such instances the governor is disabled from making an appointment at all because such an appointment would not be a “temporary” one lasting only until the people fill the vacancy by election.

Perhaps not surprisingly, the constitutional text has not been so interpreted, presumably because it makes little or no sense to deprive the governor of the authority to fill a vacancy in such circumstances and because to do so would contravene the important goal of ensuring that each state is fully represented in the Senate. See U.S. const., art. v (“no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”). Indeed, there have been at least 27 instances since the ratification of the Seventeenth Amendment where the governor’s appointee served out the balance of the senate term rather than being replaced at some point by a senator popularly elected to fill the vacancy. See Judge v. Quinn, 612 F.3d 537, 556 (7th Cir. 2010) (“Judge I“). This practice is at least some evidence that the Constitution does not require a special election in all circumstances when a senate vacancy is filled by executive appointment.

What about vacancies at the opposite extreme, namely those that arise relatively early in a senate term? The Seventeenth Amendment does not specify when the special election to fill a vacancy must take place. Thus, if a state were to provide that the special election to fill the vacancy take place at the time of the general election immediately preceding the expiration of the senate term, the election could theoretically take place more than five years after the vacancy arose. Although such a state law would not violate the literal terms of the Seventeenth Amendment, it arguably conflicts with the spirit of the amendment’s “primary objective of guaranteeing that senators are selected by the people of the states in popular elections.” Judge I, 612 F.3d at 555.

The Judge case arose out of the Illinois senate vacancy created when then-Senator Barack Obama resigned his seat effective November 16, 2008 (apparently he found a better job). After weighing his options (to put it kindly), Governor Blagojevich appointed Roland Burris to fill the vacancy. This gave rise to a great deal of legal, ethical and political controversy which is not (at least directly) relevant to the issues which eventually reached the Seventh Circuit.

Upon Burris’s taking office in January 2009, two Illinois voters filed suit to demand that the new governor (Blagojevich having been impeached and removed in the interim) issue a writ of election “to be conducted as soon as practical to fill the vacancy.” They contended that the following  provision of Illinois law violated the Seventeenth Amendment:

When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

A plain reading of this statute, as I observed at the time, is that a special election to fill the vacancy should take place in November 2010 (the next congressional election after the vacancy arose), with the winner taking office immediately and serving out the remaining two months of the original term (which would end in January 2011).

For unknown reasons, however, the Illinois attorney general interpreted this statute to allow Senator Burris to serve out the entirety of the original term. As so interpreted, the Illinois statute arguably conflicted with the Seventeenth Amendment because it allowed the governor to make an appointment that was not “temporary,” i.e., one that would last until the expiration of the term rather than “until the people fill the vacanc[y] by election” as provided by the amendment.

Eventually, the plaintiffs in the Illinois litigation dropped their contention that the Constitution required a special election to be held at the earliest practicable time. Instead they focused their argument on the proposition that the governor was required to issue a writ of election to fill the vacancy at some time before the term expired.

The most sensible way of resolving this dispute would seem to have been to read the Illinois statute to say what, conveniently enough, it actually did, thereby also obviating the constitutional objection. Indeed, the Seventh Circuit itself observed that “[a]ccording to [the Illinois] provision, the dated for the election to fill the Obama vacancy is set for November 2, 2010.” Judge I, 612 F.3d at 541. For reasons not apparent to me, however, the court accepted the state’s (uncontested) reading of the statute. On this basis, the court held the statute unconstitutional to the extent it allowed the governor to make an appointment without issuing a writ to ultimately hold a special election to fill the vacancy.

This brings us to the Arizona case. Senator McCain, who was re-elected in 2016 to a six-year term ending on January 3, 2023, passed away on August 25, 2018 after a long illness. Under Arizona law, the governor was empowered to fill the vacancy until a special election is held. The applicable law provided that the special election  would be held at the next general  congressional election, unless the vacancy arose less than six months before that general election, in which case the special election is to be held at the time of the following general election. Because the McCain vacancy occurred less than six months before the November 2018 elections, Arizona law required that the special election to fill the vacancy take place in November 2020.

The Arizona governor originally appointed former senator John Kyl to fill the vacancy. After Kyl stepped down, the governor appointed Martha McSally, the Republican nominee who narrowly lost the 2018 election for Arizona’s other senate seat, to fill the vacancy.

The aforementioned Arizona lawsuit, which was filed November 28, 2018, challenges the constitutionality of Arizona’s process for filling senate vacancies. The plaintiffs, represented by the same counsel who brought the challenge to the Illinois law, argue that the Arizona law is unconstitutional in that it requires in some instances an unreasonably long period between the occurrence of a senate vacancy and the holding of a special election (more than two years in the case of the McCain vacancy). They contend Arizona law shows that a special election can be organized within six months and therefore ask the court to order the governor to issue a writ for an election within that time period.

This case presents a different issue than the one decided in Illinois. Here Arizona intends to hold a special election to fill the vacancy and thus its action complies with the Seventh Circuit’s interpretation of the Seventeenth Amendment. The question in the Arizona case (which was raised and then dropped in the Illinois case) is whether the Constitution requires that the special election be had within a particular time frame.

Although the Illinois case is not directly on point, it is still of some relevance. For one thing, the Arizona defendants will likely argue that the case presents a nonjusticiable political question. This issue was addressed by the Seventh Circuit after it remanded the case to the district court, which “turned to state law, past practice in Illinois, and recent primary election results to establish the timing of the required special election and a fair slate of candidates to participate.” Judge v. Quinn, 624 F.3d 352, 358 (7th Cir. 2010) (“Judge II“). Because the time until the special election was short, the district court decided that the candidates should be limited to those already appearing on the general election ballot for the next full senate term.

Senator Burris, who was thereby excluded from appearing on the ballot for the special election, argued that the district court’s order establishing the mechanism of the special election exceeded its power under the political question doctrine and intruded into an area exclusively reserved for the Illinois legislature under the Constitution. The Seventh Circuit (hearing the case for the second time) rejected Burris’s argument. Judge II, 624 F.3d at 358-60. The court’s reasoning seemed to be that because the underlying constitutional question (does the Seventeenth Amendment require a special election for every vacancy) was justiciable, the district court had broad discretion to fashion an appropriate remedy.

Even if the Seventh Circuit was right about this (and I am not sure it was), its ruling is of little assistance to the Arizona plaintiffs. Unlike the question presented in Judge, the question in the Arizona case cannot be answered yes or no. The Seventeenth Amendment contains no judicially manageable standards for determining when a special election should be held. Even if the amendment is interpreted as requiring a special election at the earliest practicable time, the court has no basis for identifying and evaluating the factors relevant to that judgment, which may differ from state to state.

The Arizona plaintiffs attempt to surmount this problem by arguing that Arizona law itself establishes that six months is enough time to organize a special election. But the fact the Arizona legislature once made the judgment that six months was the minimum time needed to hold a special election on the same day as the general election does not establish this as the correct judgment for all times and circumstances.

One can easily imagine a number of factors that a legislature would need to consider in determining whether and when to hold a special election outside the normal process for conducting federal elections. What will be the effect on voter awareness and turnout? What is the risk of voter confusion if the special election is held shortly before or after the general election? What are the costs associated with a separate election process?

There are also considerations related to the process for establishing who will appear on the special election ballot. Presumably most states would prefer that ballot access be determined in a manner similar to that for an ordinary election. As the Illinois case illustrates, however, this may not be possible if the courts impose a compressed timeline on the states. In the Judge case, the Illinois district court ordered what it considered “a fair slate of candidates” for the special election to fill the Obama vacancy. Having a federal court, rather than the voters or the elected branch(es) of the state government, make such decisions is hardly consistent with the theory of popular sovereignty said to underlie the Seventeenth Amendment.

Furthermore, the claim that Arizona itself has determined that six months is adequate to hold a special election is somewhat misleading. In the spring of 2018, facing the likelihood the McCain seat would become vacant, the Arizona legislature changed the law so  that the vacancy must occur no less than 150 days before the next regular primary election in order to hold the special election on the day of the next general election. See Ariz. Stat. 16-222(D). Had the new law applied to the McCain vacancy, the minimum time to conduct the special election would have been slightly more than seven months. This demonstrates the difficulty of taking a snapshot of state law at a moment in time and translating it into a fixed constitutional rule.

As we have already noted, the text of the Seventeenth Amendment says nothing about when a special election must be held. Even if we assume that it implicitly establishes the principle that special elections should be held as soon as reasonably practicable, the task of making this determination is assigned to the state legislatures and there are no judicially manageable standards for second guessing such legislative decisions, at least when the election is held at the earliest general election as is reasonably possible. [Note: the Arizona plaintiffs do not contend it would have been possible to have held the special election in November 2018].

It is also noteworthy that a large majority of states (36 according to the National Conference of State Legislatures) provide for filling senate vacancies at a regularly-scheduled general election, rather than at a separately scheduled date. Such a widespread practice would seem to be entitled to significant weight in construing the Seventeenth Amendment.

In addition to all of this, the Arizona plaintiffs must overcome the ruling in Valenti v. Rockefeller, 292 F. Supp. 851 (W.D.N.Y. 1968), in which a three-judge district court held that a 29 month delay between the vacancy caused by the assassination of Senator Robert F. Kennedy and the special election to fill that vacancy did not violate the Seventeenth Amendment, a ruling summarily affirmed by the Supreme Court.  Valenti v. Rockefeller, 393 U.S. 405 (1969).

For all of these reasons, I believe the Arizona plaintiffs most likely will (and should) lose either on the political question doctrine or on the merits. They also may have a laches problem. Their complaint was filed a full three months after Senator McCain died. This seems like a long time to wait in a case where time is said to be of the essence, particularly given the vacancy was anticipated months in advance.

To her undoubted relief, therefore, Senator McSally will not be found to be unconstitutional.



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