Special election sought to fill remainder of McCain's term

Martha McSally in December after being tapped by Gov. Doug Ducey to serve through 2020 in the Senate seat formerly occupied by John McCain. Federal appellate judges heard arguments Wednesday whether Ducey exceeded his authority.

PHOENIX -- An attorney for several Arizonans asked a federal appeals court on Wednesday to order a special election to replace Sen. John McCain -- and sooner than the November 2020 vote set by Gov. Doug Ducey.

Michael Persoon told a three-judge panel of the 9th Circuit Court of Appeals that the U.S. Constitution does allow Ducey to “temporarily’’ fill a vacancy created by the death or resignation of a senator. That is how Jon Kyl got appointed following the August 2018 death of McCain and how Martha McSally was tapped after Kyl quit in January.

But Persoon said there also is a legal requirement to call a special election to fill out the balance of the senator’s term.

Ducey did that -- but set the date for that special election to coincide with the regular 2020 election, 27 months after McCain’s death. And Persoon said that is illegal, effectively denying Arizona voters a chance to select someone they actually want to represent them.

Dominic Draye who is representing Ducey, countered that the governor acted as quickly as he could -- and as quickly as state law allows.

He pointed out that Arizona law spells out that if a Senate vacancy occurs within 150 days of the next scheduled election -- as happened here -- then the governor can name someone to hold the spot until the following general election. And that, Draye said, means November 2020.

Hanging in the balance is how soon Arizona voters will get to decide if they want McSally to serve through 2022, when McCain’s six-year term will have ended.

The way Persoon sees it, that election should have been held already. He told the court there is no reason why a special election, complete with time to nominate candidates and have a primary and general election, cannot be done within 190 days of a vacancy.

At this point, however, time may be running out.

In June, U.S. District Court Judge Diane Humetewa rejected his bid for an earlier special election, saying she finds nothing in federal law that says 27 months between a vacancy and an election is too long. Now Persoon faces the prospect that, even if the appellate judges agree with him, time is running out to do much before the already scheduled August 2020 primary.

As it turned out, though, the judges were skeptical of his legal arguments.

The biggest thing working against Persoon and his clients is a 1969 federal appellate court ruling which found that it was not unreasonable for the state of New York to wait until November 1970 to have an election to fill the vacancy created by the June 1968 assassination of Sen. Robert Kennedy, a gap of 29 months.

On Wednesday, appellate Judge Milan Smith Jr. pointed out to Persoon that ruling was upheld by the U.S. Supreme Court. He questioned how the 9th Circuit could ignore that precedent.

Persoon, however, said that 1969 ruling only dealt with the question of whether New York voters should have been able to select Kennedy’s replacement in 1968.

In this case, Persoon was not demanding that there be a special election for McCain’s seat last year. So he said that earlier precedent does not undermine his claims that Arizona voters should not have to wait until November 2020 to decide if they want to keep McSally as their senator.

Persoon also told the appellate judges they should reject some of the arguments presented by Ducey about why a special election makes no sense.

One of those is the question of cost of a special vote, versus consolidating it with the regular 2020 election. Persoon called that a “dubious justification.’’

He also said there is “no evidence’’ that turnout at a special statewide election for senator would be meaningfully less than it would otherwise be on a regular election day. And Persoon rejected the argument that a special election would result in voter confusion.

Persoon separately argued that it is illegal for Arizona to require a governor to appoint a replacement who is of the same political party as the senator who died or resigned.

But appellate Judge Daniel Collins questioned whether it even makes sense for the court to rule on it, as Ducey has said that he would have appointed McSally even if he had been able to choose any contender from any party.

McSally actually ran for the Senate in 2018 in a bid to fill the seat being vacated by retiring Republican Sen. Jeff Flake only to be defeated by Democrat Kyrsten Sinema. That, however, did not preclude Ducey appointing her to McCain’s slot, at least through 2020 when McSally will have to win a race against Democrat Mark Kelly for the last two years of McCain’s term.

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