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Federal judge: McSally can keep McCain’s Senate seat until 2020 election

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. (Howard Fischer/Capitol Media Services)

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. (Howard Fischer/Capitol Media Services)

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

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.

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