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Judge rejects claim on election to decide McCain successor

Martha McSally answers questions in December after being tapped by Gov. Doug Ducey to fill out at least the next two years of the Senate term of John McCain who died last August. (Capitol Media Services file photo by Howard Fischer)

Martha McSally answers questions in December after being tapped by Gov. Doug Ducey to fill out at least the next two years of the Senate term of John McCain who died last August. (Capitol Media Services file photo by Howard Fischer)

PHOENIX -- Martha McSally can keep John McCain’s Senate seat until at least the 2020 election, a federal judge ruled.

Judge Diane Humetewa rejected arguments that the U.S. Constitution requires there be a special election within a year -- if not less -- when there is a vacancy in a Senate seat.

She acknowledged that the Constitution allows a governor to fill a Senate seat on a “temporary’’ basis. And Humetewa said that 27 months will have elapsed between McCain’s death last August and the next regular election in 2020.

But the judge said there is nothing in the law that says 27 months is too long for a temporary appointment. And Humetewa said that allowing Gov. Doug Ducey to put McSally into that office until the 2020 election does not infringe on the 17th Amendment of the U.S. Constitution which gives voters the right to choose their own senators.

In an extensive ruling, Humetewa also said that any argument in favor of forcing a special election is overshadowed by all the reasons advanced by attorneys for Ducey not to have one.

For example, she said, allowing McSally to serve until 2020 -- when she would have to run for the final two years of McCain’s six-year term -- actually increases the right to vote. She cited figures advanced by Ducey’s lawyers which show that special elections have a much lower turnout than regular November elections.

“The court finds voter turnout to be an important state interest,’’ Humetewa wrote.

The judge also said the state is entitled to consider that it would cost money to have a special election.

“Conversely, there would be no additional cost to the state to hold the vacancy election at the next general election in November 2020, as that election is already scheduled to take place,’’ Humetewa said.

And the judge also said a special election could lead to “confusion and inconvenience to voters,’’ including “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.’’

Attorney Michael Kielsky, who filed the lawsuit on behalf of voters from various political parties, said allowing an unelected appointee to serve as a senator for that long “seems weird, if not violating the spirit if not the letter of the 17th Amendment.’’ He vowed to appeal.

Arizona law says if a Senate vacancy occurs more than 150 days from the next election then any temporary appointee can serve only until that election. But anyone named within 150 days of a vacancy can serve until the following election.

McCain died just days before the 2018 primary, freeing up Ducey under Arizona law to tap someone to serve through 2020.

He originally named former U.S. Sen. Jon Kyl to the post. But Kyl quit at the end of last year, freeing up Ducey to name McSally who by that time had her own Senate race to Democrat Kyrsten Sinema.

Kielsky found the whole process flawed, especially with that 27-month gap between McCain’s death and the 2020 election. Humetewa, however, wasn’t buying it.

“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,’’ she ruled.

Nothing in Thursday’s ruling affects vacancies in the U.S. House which constitutionally can be filled only through a special election, with no opportunity for a governor to name an interim replacement.

On Twitter: @azcapmedia

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