Suit filed against Ducey over future of McCain seat

Lawyers in Chicago and Arizona have launched a long-shot legal bid to let Arizona voters, not Gov. Doug Ducey, decide next year who will hold the Senate seat once held by John McCain.

The legal team is fighting on behalf of five individuals over filling the seat, which is now held by Ducey appointee Jon Kyl. One of the plaintiffs is Barry Hess, the Libertarian and one-time gubernatorial candidate.

Their lawsuit against Ducey and Kyl was filed Wednesday in U.S. District Court in Phoenix. McCain died Aug. 25 after a battle with brain cancer. The lawsuit argues that Ducey violated the Constitution’s 17th Amendment by not calling for an election to be held as soon as practicable after the McCain vacancy occurred. Ducey did issue a writ of election within days of McCain’s death, scheduling it to be held in 2020, said Eric Spencer, elections director for the Arizona secretary of state.

The lawsuit seeks an order from the court to direct the governor to call a special election to fill the seat to be held within six months.

The complaint claims that an appointee cannot serve for a lengthy time in lieu of someone elected by voters and by keeping in office a “‘temporary’ appointee far beyond the period within which an orderly election could be held, the defendant Governor has deprived plaintiffs and other citizens of their right to vote under the Seventeenth Amendment to determine who shall represent the people in the Senate.”

Arizona State University constitutional law professor Paul Bender cast the lawsuit as a long-shot bid, since the 17th Amendment expressly allows state legislatures to empower the governor to name replacements to serve until voters fill the vacancy by election “as the Legislature may direct.”

If a senator dies, Arizona law requires the governor to appoint a successor who is a member of the same political party as the senator who held the seat. If the vacancy occurs within 150 days of the next regular primary election date, the appointee serves until the vacancy is filled at the second regular general election held after the vacancy occurs.

Because the McCain vacancy occurred within 150 days of the November 2018 primary election, the governor’s appointee would be allowed to serve until 2020, Bender said.

“The governor doesn’t have to call an immediate election,” Bender said.

“The Constitution says clearly that the Legislature in the state can let the governor make a temporary appointment, which will last as long as the Legislature wants it to last. And that here would be until 2020.”