An interesting and potentially important lawsuit in federal court in Arizona is challenging the way state officials have sought to deal with the vacancy in the US Senate created by Senator McCain’s death four months ago (on August 25, 2018). Senator McCain was last elected in November 2016, and the six-year term he won expires in January 2023. On September 4, 2018, Arizona Governor Doug Ducey, acting pursuant to the Seventeenth Amendment of the US Constitution and state law, appointed Jon Kyl to fill the Senate vacancy arising from Senator McCain’s death, until an election is held for the seat. Under Arizona Revised Statutes § 16-222, the election by the people to fill the remainder of Senator McCain’s term is not supposed to take place until November of 2020, more than 26 months after McCain died. Had McCain died (or otherwise left the Senate) several months earlier, the election to fill his term would have occurred last month, in November of 2018. But because his passing occurred within six months of this year’s congressional election, state law provides that the replacement election be deferred until the next regularly scheduled general election for members of Congress, in 2020. (Adding more complexity still, Senator Kyl has now announced that he himself will step down in a few months, which led Governor Ducey to announce last week his intent to appoint Martha McSally to serve between Kyl’s departure in February 2019 and the November 2020 election.)

The lawsuit, filed on behalf of voters in Arizona, alleges, among other things, that Governor Ducey must issue, but has not yet issued, “writs of election” to set and to publicize the date of the vacancy-filling election, and also that the date of the election must be much earlier than 2020, because a 26-plus month lag time between vacancy creation and vacancy-filling election offends the US Constitution.

The key constitutional provision is Section 2 of the Seventeenth Amendment. The Seventeenth Amendment was an alteration of the Constitution, added in 1913, to guarantee direct popular election (as distinguished from state legislative selection) of US senators. Section 2 says:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Plaintiffs in the Arizona case argue that the fundamental decision made by the Seventeenth Amendment is that voters—not the governor and certainly not state legislatures—should decide who serves as US senators. That is why the first thing Section 2 says about vacancies is that governors (“executive authorit[ies]”) “shall issue writs of election [by the people] to fill such vacancies.” And although “temporary appointments” may be needed and helpful to fill vacancies until a full and fair election can be held, a state has a federal duty to hold such an election as soon as is reasonably possible, to vindicate the right of popular vote enshrined in the Amendment.

The argument is not without some force. The Seventeenth Amendment certainly does at its core reflect a mandate for popular Senate elections. At a minimum, a governor cannot simply appoint someone to fill a Senate remainder term entirely; an election must be scheduled and held, and afterwards the winner should be seated immediately rather than at the beginning of the next congressional term. There is good authority (at least in the US Courts of Appeals) that “shall issue” means “must issue,” and since Governor Ducey has failed to start the vacancy-filling election machinery by issuing election writs, he has flouted his responsibilities under the plain language of the Amendment.

Whether, when he does issue election writs, he can abide by the November 2020 date for a vacancy-filling election embodied in Arizona law is a tougher matter. This is because the last clause of Section 2 of the Seventeenth Amendment—“as the legislature may direct”—can be read to give state legislatures substantial leeway to regulate the procedures relating to vacancy-filling elections. Certainly the manner and place of such elections is within the legislature’s control. And if one reads the “as the legislature may direct” language to confer the same power that Article I, Section 4, confers on state legislatures to, in the first instance, regulate regular biennial congressional elections, then timing as well as place and manner would be within the legislature’s control, since Article I empowers state legislatures as to the “Times, Places and Manner of holding” federal elections.

Another relevant constitutional provision directs governors to issue writs of elections to fill vacancies created in the House of Representatives, but that provision is not accompanied by any explicit conferral of power on state legislatures. (Query whether that absence means that governors have more leeway to make time, place, and manner decisions with regard to House-vacancy elections than Senate-vacancy elections.)

The case law directly bearing on the time period within which the Constitution requires a vacancy-filling Congressional election is rather sparse.

In one case, Judge v. Quinn (II), the Seventh Circuit in 2010 directed that state laws regarding primary procedures that stood in the way of holding a vacancy-filling election could and should be disregarded, but the court at the same time affirmed what it had said a few month earlier (when the case was before the Seventh Circuit on a different issue) to the effect that state law properly controlled the timing of any vacancy-filling election. The court was clear that there does need to be a special election, at the conclusion of which the winner needs to be seated before the next congressional session begins (even if only by a few months), but it said nothing to suggest that state law couldn’t set that election on the date of the next regular November congressional election. To the contrary, the court said: “The timing and mechanics of the special election are governed by state law, as contemplated by the Elections Clause of the Constitution and the final phrase of the Seventeenth Amendment’s second paragraph.” As noted above, the Seventh Circuit in Judge v. Quinn did affirm the district court’s decision to disregard primary election procedures embodied in state law, but only in order to comply with the legislature’s prescribed date for the replacement election in the Illinois Election Code; thus, one way to read the case is as saying that if something in state law had to give (both under state law and as required by the Seventeenth Amendment), it should be the primary system, not the legislatively selected election date.

In Jackson v. Ogilvie, the Seventh Circuit had much earlier (in 1970) also rejected an argument made by a state, in the context of a House vacancy, that having an opening persist for a period of about eleven months was inconsequential and that no vacancy-filling election needed to be held. But (putting aside the fact that the House openings may be different from Senate openings because a vacant congressional district remains totally unrepresented until an election since there is no temporary appointment option and because House district elections may be easier to hold than statewide US Senate elections), the court pointed out that no challenge was made to the 162-day time period called for by state law before an election can be held. So the court was not overriding, but instead enforcing, the legislature’s enacted vacancy-filling election timeline. As a result, the case does not directly address the question now presented—whether a legislature’s prescribed timeline can be judicially overridden.

Perhaps the most directly relevant case is Valenti v. Rockefeller, where in 1969 plaintiffs argued—similarly to the plaintiffs in Arizona—that a 29-month delay in a Senate vacancy-filling election was impermissibly long. Only one judge of the three-judge district court panel (Judge Frankel) that ruled on the case agreed that this time lag was constitutionally impermissible; the two judges in the majority found that New York law’s preference to wait until the next regularly scheduled November congressional election (similar to Arizona’s law and that of dozens of other states) was reasonable. The majority credited the state’s desires to promote election cost efficiency, to increase voter turnout, and to enable candidates in the vacancy-filling election time to raise money and conduct a statewide campaign—all of which are bigger challenges in Senate vacancy elections compared to House vacancy elections—and found these state objectives were constitutionally permissible and indeed weighty. Importantly, the Supreme Court summarily (that is, without oral argument or an explanatory opinion) affirmed the three-judge district court panel. While summary affirmances have significantly reduced precedential weight at the Court itself, they are (according to the Court) fully binding on lower courts, at least when precisely the same legal questions are presented. So unless the plaintiffs can convince the federal court in Arizona that the time delay now under consideration is different from that at issue in Valenti, the Court’s summary affirmance in Valenti may be a formidable obstacle. Plaintiffs may point out that there has been much intervening Supreme Court precedent in the 50 or so years since Valenti and argue that some of this new precedent should blunt the effect of the summary affirmance. The Supreme Court’s discussion of the precedential effect of summary rulings opens the door to such arguments, but I’m not sure the argument will succeed in light of a 1989 case called Rodriguez de Quijas v. Shearson/American Express, which talks more generally about lower court obedience to precedent.

In particular, Rodriguez de Quijas directs lower courts to continue to follow all Supreme Court rulings on the merits that would otherwise govern, even if more recent Supreme Court rulings suggest the possibility or even likelihood that the Supreme Court is poised to overturn its own past decisions. Whether the Rodriguez de Quijas principle applies fully to summary decisions by the Court (as opposed to more fully considered rulings) is the key question here. And although the matter is not free from doubt, the three (largely unexplored) reasons that justify and explain the Rodriguez de Quijas rule—a hierarchical federal court etiquette in which lower courts must rigidly respect rulings by higher courts that are “on the merits,” the benefits of uniformity in the federal court system and, most crucially, the preservation of the Supreme Court’s discretion about precisely when to take up contentious national legal matters—all might be seen to argue in favor of applying Rodriquez de Quijas even to summary dispositions.

In Part Two, I will take up two other aspects of Arizona’s law that I find constitutionally problematic—the requirement (rather than facilitation) of a temporary gubernatorial appointment, and the requirement that the governor’s pick(s) to fill a temporary vacancy be drawn from the same political party as the departed senator.