9th Circuit Court of Appeals
Could Force Arizona’s Hand

By Jim Ellis

Appointed Arizona Sen. (and former representative) Martha McSally (R)

Aug. 13, 2019 — Soon after Republican Congress-woman Martha McSally was appointed to the Senate, a group of Arizona voters — two Democrats, a Repub-lican, a Libertarian, and an Independent — challenged the length of time that she could serve without going to election. Now the case awaits a ruling in the 9th Circuit Court of Appeals that could force the state to hold an early special election.

Sen. John McCain (R), who was re-elected in 2018, passed away in late August almost a year ago, on the 25th. Gov. Doug Ducey (R) then appointed former Sen. Jon Kyl (R) to serve until the 2020 election, but Kyl only pledged to stay through 2018. He then resigned before the new Congress took office at the beginning of this year. Gov. Ducey responded by appointing then-Rep. McSally (R-Tucson), who had just lost the 2018 open seat US Senate election to then-Rep. Kyrsten Sinema (D-Phoenix).

Because Sen. McCain died so early into his term, there would be an appointment followed by a special election. The appointment would extend to the next general election in 2020, with the winner serving the balance of the term. Therefore, whoever wins next November’s special election wouldn’t be eligible to run for a full six-year term until 2024.

Under Arizona law, which is similar to succession laws in 35 other states, the governor appoints an interim senator who serves until the next regular election. In 14 states, which have systems similar to what the plaintiffs are demanding, a special election is scheduled at the earliest possible date according to the individual state law.

In Sen. McSally’s case her interim term would stretch to 27 months, which the group of plaintiffs argues is too long a time to not give the voters a say. The federal district court judge rejected the argument, but the plaintiffs appealed to the 9th Circuit. Late last week, the appellate court agreed to hear the case, and will do so in an expedited manner.

The 2020 Arizona special election promises to be one of the most hard-fought campaigns during the cycle. Even at this early date it is already clear that the two major party nominees will be Sen. McSally and retired astronaut Mark Kelly (D), who is the husband of former US Rep. Gabrielle Giffords (D-Tucson).

The contest is already almost at fever pitch. In fact, Kelly raised more money in the 2nd Quarter than any other US Senate candidate, $4.24 million, but he was closely followed by Sen. McSally who raised the second-most of any federal candidate in the country, $3.4 million. Kelly had $5.9 million cash-on-hand at the end of June while Sen. McSally had $4.4 million.

The most recent published poll, from Phoenix-based OH Predictive Insights (May 1-2; 600 likely Arizona voters), found the appointed senator leading the retired astronaut by only a 45-44 percent margin. In 2018, the Sinema-McSally Senate race was decided by a close 50-48 percent spread. Therefore, the 2020 campaign is expected to be in toss-up mode throughout its duration.

The appellate court has three ruling options. First, the three-judge panel could uphold the lower court ruling and not change the current election calendar. Second, the judges could overturn the ruling and order an immediate special election. Third, they could overturn the ruling, but not order the election.

Under the current timetable, the regular Arizona primary is scheduled for Aug. 4, 2020, followed by the regular general election in November. If the special is ordered earlier, a stand-alone primary and general election would be scheduled. The general election winner would then serve through the beginning of 2025 and be eligible to seek a full term in the 2024 regular election cycle. Under this scenario there would be no 2020 regular cycle election for this seat.

It is probable that whichever side loses the appellate court ruling will move for US Supreme Court consideration. Such would be an important SCOTUS decision because it could conceivably affect the current Senate vacancy succession laws in a total of 36 states. Therefore, even if the 9th Circuit decides to order an early election, awaiting Supreme Court consideration could potentially stretch the time to make the schedule change inconsequential.

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