Judge rules McSally can keep appointed Senate seat until 2020 general election

PHOENIX — Martha McSally can keep John McCain’s Senate seat until at least the 2020 general 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 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 that gives voters the right to choose their own senators.

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In an extensive ruling, Humetewa also said 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 that 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.