9th Circuit judges hear arguments for calling earlier election to fill McCain seat

Sen. Martha McSally assumed office in January after Gov. Doug Ducey picked her to replace Jon Kyl, who had filled the John McCain vacancy./Capitol Media Services / 2018.

By Howard Fischer | Capitol Media Services via Arizona Daily Star

An attorney for several Arizonans asked a federal appeals court 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 McCain’s August 2018 death, 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 want to represent them.


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November 2019