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Judge asked to order US Senate election soon
Attorney: McSally should not hold McCain seat until 2020 without vote

U.S. Rep. Martha McSally, R-Ariz., speaks, during a news conference Tuesday, Dec. 18, 2018, at the Capitol in Phoenix, after Arizona Gov. Doug Ducey announced his decision to replace U.S. Sen. Jon Kyl, R-Ariz. with McSally in the U.S. Senate seat that belonged to Sen. John McCain. (Matt York/AP)

U.S. Rep. Martha McSally, R-Ariz., speaks, during a news conference Tuesday, Dec. 18, 2018, at the Capitol in Phoenix, after Arizona Gov. Doug Ducey announced his decision to replace U.S. Sen. Jon Kyl, R-Ariz. with McSally in the U.S. Senate seat that belonged to Sen. John McCain. (Matt York/AP)

PHOENIX — An attorney for members of various political parties told a federal judge Friday she should order a statewide election -- and soon -- to let voters fill the Senate seat now occupied by Martha McSally.

Michael Persoon said there was nothing wrong with Gov. Doug Ducey initially appointing Jon Kyl to the vacancy created last year by the death of Sen. John McCain. When Kyl quit in January, Ducey tapped McSally.

But Persoon told Judge Diane Humetewa that Ducey has no right under the U.S. Constitution to have McSally hold that seat until the 2020 general election.

He said the governor is required to give voters a chance as soon as possible to decide who should be their senator.

And by that, Persoon said, he means within 100 days of the vacancy.

That date is long past, with McCain dying on Aug. 25. But Persoon said there is still plenty of time for Humetewa to allow voters to weigh in.

But Michael Liburdi, representing the governor, said Ducey acted in accordance with state laws.

They say if a vacancy in the U.S. Senate 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 means November 2020.

Persoon did not dispute that is what state laws say. But he contends they violate constitutional provisions, which require that voters get their say as soon as possible.

That is not the only legal issue Persoon has with the state law.

He also wants Humetewa to void another provision in the statute that says whoever the governor picks, whether on a shorter or longer-term basis, has to be of the same political party as the senator being replaced.

That is not just an academic argument.

Persoon told the judge that Barry Hess, one of his clients, would have liked the opportunity to offer his name for the vacancy. Hess is a Libertarian who has run for governor, unsuccessfully, for more than a decade.

Liburdi defended the requirement, saying it ensures some continuity in the political representation of the state in the Senate. But he also suggested to Humetewa that the whole question is sort of silly, saying if Ducey is forced to make a new pick, regardless of political party, he still would choose McSally.

The heart of the legal fight is the 17th Amendment to the U.S. Constitution added in 1913. It took the power to appoint U.S. senators away from state legislatures, as it had been until then, and provided for direct election, the same as has always been true for members of the House of Representatives.

“There’s a radical shift in who that senator represents,’’ Persoon said.

That amendment also says when there are vacancies, the governor “shall issue writes of election to fill such vacancies.’’ But it also says that state lawmakers may allow the governor to “make temporary appointments until the people fill the vacancies by election as the legislature may direct.’’

Liburdi said that last line is what backs the Arizona law saying any vacancy within 150 days of a scheduled election can be put off until the next general election. Anyway, he told the judge, that makes more sense than calling a special election what with the expense and the anticipated low turnout.

Persoon, however, said 27 months — the time between McCain’s death and the 2020 general election — is far too long to leave the Senate seat in the hands of a political appointee. He said there’s no reason that Ducey cannot call for a special election sometime this year, giving voters a chance to decide who they want in the interim and not Ducey’s choice of McSally, who actually had lost her own Senate bid last year to Democrat Kyrsten Sinema.

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