Michael Kielsky | Arizona Capitol Times

9th Circuit to hear appeal on McSally’s appointment

Sen. Martha McSally, R-Ariz., smiles with her staff after delivering her first major speech on the Senate floor, at the Capitol in Washington, Tuesday, July 30, 2019. McSally is a former Air Force colonel who flew combat missions in Iraq and Kuwait. (AP Photo/J. Scott Applewhite)

Federal appellate judges have agreed to decide whether Martha McSally can continue to serve as a U.S. senator at least through the 2020 election.

And they have agreed to rush the case – at least by judicial standards.

In a brief order, the judges of the 9th U.S. Circuit Court of Appeals rejected arguments by McSally and Gov. Doug Ducey, who appointed her, that there is no need to expedite the issue.

“Regardless of how this court ultimately decides this appeal, Arizona voters will have the opportunity to select the person to complete Sen. John McCain’s term in 2020,” wrote Brett Johnson, one of the attorneys representing the governor. And he argued that there would not be a need for an expedited hearing had the challengers to the appointment moved a bit faster when the case was heard in federal district court in Phoenix.

James Tyrell III, McSally’s attorney, echoed those arguments in what amounts to a “me, too” filing with the court.

But that didn’t convince the appellate judges who agreed to move more quickly than normal and set a hearing for November.

That still leaves the question of whether there can be a final resolution and an order for a special election if it comes to that before the already scheduled August 2020 primary where McSally could face Republican foes in her bid to fill out the last two years of McCain’s six-year term and, if she survives that, the November general election where Democrat Mark Kelly hopes to unseat her. That’s because whoever loses this round is likely to seek U.S. Supreme Court review which could delay a final ruling.

“All we can do is try,” said attorney Michael Kielsky who is representing the challengers. And he conceded that a final determination could come too late to force the special election being sought.

But Kielsky said that, if nothing else, it would set the precedent for what happens in future Senate vacancies and how long an unelected choice by the governor can serve.

Central to that is the 17th Amendment to the U.S. Constitution. It took the power to name U.S. senators away from state lawmakers and gave it directly to voters.

It also says that when there are vacancies, the governor “shall issue writs of election to fill such vacancies.” Ducey has done that, setting the primary for Aug. 25, 2020 and the general election for the following Nov. 3 to determine who gets to serve through 2022.

The lawsuit, however, contends the Constitution requires the appointment to be temporary “until the people fill the vacancies by election as the Legislature may direct.”

In this case, McCain died last August.

Arizona Gov. Doug Ducey, left, appointed former U.S. Sen. Jon Kyl on Sept. 4 to fill the seat vacated by the late Sen. John McCain. Though Kyl accepted the appointment, he will not seek election in 2020 nor did he agree to serve out the full remainder of the term. PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES — Arizona Gov. Doug Ducey, left, appointed former U.S. Sen. Jon Kyl on Sept. 4, 2018, to fill the seat vacated by the late Sen. John McCain. Kyl resigned in January. PHOTO BY KATIE CAMPBELL/ARIZONA CAPITOL TIMES

Ducey initially named former Sen. Jon Kyl to the seat until he quit in, at which point the governor selected McSally who had just been defeated in her own Senate race by Democrat Kyrsten Sinema.

But challengers are arguing that 27 months between McCain’s death and the November 2020 election hardly counts as a “temporary” appointment. He wants a special election ahead of that to give voters the chance to put someone other than the unelected McSally in office to represents them as soon as possible.

Challengers have to seek 9th Circuit intervention because U.S. District Judge Diane Humetewa rejected his arguments that the Constitution requires there be a special election within a year, if not less, when there is a vacancy in a senate seat.

In her June ruling, Humetewa acknowledged that Ducey is allowed to fill a Senate seat on a “temporary” basis.

But the judge said she finds nothing in the law that says 27 months is too long for a temporary appointment. And Humetewa rejected the argument that allowing McSally to serve until the 2020 election infringes on that 17th Amendment right of voters to choose their own senators.

Humetewa also accepted arguments by Ducey’s attorneys that there are good reasons not to call a special election and instead let McSally serve through 2020. That includes arguments that turnout at a special election would be less than during a regular one, plus the cost of a special election.

9th Circuit upholds law to burden Libertarian candidates

Symbol of law and justice in the empty courtroom, law and justice concept. — Deposit Photos

A federal appeals court has upheld a 2015 state law which the Libertarian Party charges – and some Republican lawmakers admitted – was specifically designed to keep its candidates off the ballot.

In a unanimous ruling Friday, the 9th Circuit Court of Appeals acknowledged that the law could require would-be Libertarian candidates to gather the signatures of up to 30 percent of registered party members to qualify for the primary.

But Judge Margaret McKeown, writing for the court, said that isn’t the fault of the Republican-controlled Legislature that enacted the requirement.

She pointed out that the Libertarians, just like Republicans and Democrats, can offer themselves for office by getting the signatures of just 1 percent of those who are eligible to sign petitions. That means not just Libertarians but also those who are unaffiliated with any other political party.

McKeown, a President Clinton appointee, said it is the decision of the Libertarian Party to allow only party members to vote in the Libertarian primary.

“And it does not want its candidates to solicit signatures from non-members,” she said.

Put simply, McKeown said the problem is of the party’s own making because of party policy. And she said that voiding the law – and going back to the way things were – would “incentivize parties to have fewer registered members and therefore artificially reduce the signature requirements.”

Michael Kielsky, a party member and plaintiff in the lawsuit, said he expect the ruling to be appealed.

Prior to 2015, candidates for recognized minor parties could get on the ballot simply by submitting petitions with the signatures of one-half of one percent of those registered with the party. In 2018 for the Libertarians, a statewide candidate would have had to collect around 160 names.

That year Republicans lowered the requirement to one-quarter of one percent. But they engineered it so that the figure was based on all who could sign a candidate’s petition.

That added political independents to the base, who actually outnumber Democrats and run a close second to Republicans.

So in 2018 the minimum signature requirement for a Libertarian running statewide was 3,153, about 10 percent of all those actually registered as Libertarians. For the Green Party the floor was 1,253.

Meanwhile the numbers for Republican and Democrat nominations remained close to what it always had been: 6,223 for the GOP and 5,801 for Democrats, both a small fraction of each party’s voter registration.

McKeown acknowledged the burden for Libertarians with the party’s desire to have petitions signed only by party faithful. And she said it could reach 30 percent for some offices.

But she said states are entitled to make the “preliminary showing of a significant modicum of support” as a condition of being put on the ballot. And the judge dismissed the current burden as being unreasonable, citing the fact that Arizona law permits people to get nomination signatures not just in person but online.

Kielsky said the court ignored the evidence that there were political motives behind the change in the law.

“It is designed to screw us,” he told Capitol Media Services.

In debating the change, GOP lawmakers made it clear they hoped to improve the odds for Republican lawmakers who might otherwise lose votes to a Libertarian.

As proof they cited the 2012 congressional race for CD 1, which runs from Flagstaff and the Navajo Nation to the edge of Tucson.

Republican Jonathan Paton garnered 113,594 votes against 122,774 for Democrat Ann Kirkpatrick. But Libertarian Kim Allen picked up 15,227 votes – votes that then-Rep. J.D. Mesnard, now a state senator, contended likely would have gone to Paton.

Similarly, in the newly created CD 9 which encompasses parts of Tempe and Phoenix, Democrat Kyrsten Sinema beat Vernon Parker by 10,251 votes, with Libertarian Powell Gammill tallying 16,620.

And to ensure the point was not lost on his GOP colleagues, Mesnard made the issue more personal, warning them that they, too, could find themselves aced out of a seat if they don’t change the signature requirements.

“I can’t believe we wouldn’t see the benefit of this,” he said during a floor speech.

Kielsky said all that presumes that “the votes belong to a particular party, they do not belong to the people.”

The law produced the desired results: There was not a Libertarian Party candidate for governor on the ballot for the first time in more than two decades. That cleared the way for a head-to-head race between incumbent Republican Doug Ducey and Democrat challenger David Garcia, without either candidate having to worry about votes being siphoned off by a minor party contender.

Coalition of voters takes Ducey to court over filling U.S. Senate seat

Gov. Doug Ducey (Photo by Katie Campbell/Arizona Capitol Times)

The former leader of Arizona’s Libertarian Party filed a lawsuit against Gov. Doug Ducey Wednesday, arguing he must immediately hold a special election to fill the U.S. Senate seat formerly held by John McCain.

The suit, filed in the U.S. District Court for Arizona, alleges that Arizona laws dictating how to handle a vacancy in the U.S. Senate violate the 17th amendment of the U.S. Constitution, and deprive Arizona citizens of their 14th Amendment and First Amendment rights.

Michael Kielsky, an attorney at Udall Shumway, former chairman of the Arizona Libertarian Party and frequent candidate for public office, brought the suit on behalf of a coalition of five Libertarian, independent, Republican and Democratic voters.

Daniel Scarpinato, Ducey’s chief of staff, dismissed the suit as “another frivolous lawsuit.”

But Kielsky said that leaving the seat with an appointee until 2020 is unreasonable, and a judge will decide if the suit is frivolous.

“As with a lot of constitutional provisions, we have to apply a reasonable standard… (An election in) March would be reasonable, May would be OK, but two years is unreasonable,” he said.

He noted that a lawsuit challenging the appointment to the U.S. Senate seat in Illinois that former President Obama vacated in 2009 was successful on similar grounds.

Arizona law states that if a vacancy occurs in the U.S. Senate, the governor shall appoint a person to fill the vacancy, and that person shall serve until the next general election. But if the vacancy occurs less than 150 days before the next primary election – as happened with McCain – the appointee “shall serve until the vacancy is filled at the second regular general election held after the vacancy occurs,” meaning the 2020 election.

The suit argues that law violates the 17th Amendment, which granted voters direct elections of U.S. Senators. That amendment states that in the event of a Senate vacancy, the state governor 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.”

But the suit argues that the state Legislature has no authority to mandate that a temporary appointee serve in lieu of a Senator directly elected by the people, “beyond any period necessary to hold an orderly election.”

The suit argues that by keeping in office a “temporary” appointee far beyond the period within which an orderly election could be held, Ducey has deprived plaintiffs and other citizens of their right to vote under the 17th Amendment and to determine who shall represent the people in the Senate.

As a result of the state law, “citizens of Arizona will be deprived of elected representation in the Senate for over twenty eight months, and will suffer irreparable injury from such a lengthy loss of elected representation in the United States Senate,” the suit argues.

While some states dictate that U.S. Senate vacancies must be filled by special election, most states employ similar delays in filling a vacancy that occurs shortly before a scheduled election, though most use shorter timelines than Arizona, according to the National Conference on State Legislatures.

In Virginia, if the vacancy occurs fewer than 120 days before the primary election, the appointee serves until the following election cycle, according to the NCSL. In New Jersey, if a vacancy occurs more than 30 days before the next primary election, it’s filled that year, otherwise the appointee serves until the next election cycle.

Ducey attorneys respond to lawsuit challenging process of Senate appointment

Ducey/McSally PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES — Gov. Doug Ducey appoints Rep. Martha McSally to the fill John McCain’s senate seat currently held by Jon Kyl who stepped down Dec. 31 PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES

Attorneys for Gov. Doug Ducey are asking a federal judge to throw out a lawsuit demanding that he call an election — and soon — to determine who will occupy the U.S. Senate seat following the death of John McCain rather than let Martha McSally keep the post until 2020.

In legal papers filed Friday, Brett Johnson, who is leading the legal team, acknowledged that vacancies in the U.S. Senate must be filled by a special election. But Johnson told U.S. District Court Judge Diane Humetewa that the U.S. Constitution allows the Legislature to let Ducey name a senator to serve until the next regular election.

The governor initially named Jon Kyl. And when Kyl quit at the end of last year, Ducey tapped McSally who had just lost her own Senate race to Democrat Kyrsten Sinema.

And the fact that election won’t be until 27 months after McCain’s death last August, he said, does not alter Ducey’s ability to have McSally serve until 2020.

Anyway, Johnson said, a special election solely to name a replacement would not just be expensive but also would give the edge to wealthier candidates.

In a lawsuit filed last year, attorney Michael Kielsky, chairman of the Arizona Libertarian Party contends that the governor must call a special election as soon as practicable to fill the post, a period he said is no longer than six months. Kielsky, representing two registered Democrats, one Republican, one Libertarian and an independent, said there is no reason for an unelected person of the governor’s choosing to be able to serve through the end of 2020.

But Johnson said Kielsky is misreading the law.

There is no question but that Arizona law allows a governor to appoint a temporary replacement when a Senate vacancy occurs. That person has to be of the same political party as the senator who quit or died.

And the law does require that there be an election to determine who gets to finish out the balance of the term. In McCain’s case, his term ran through 2022.

Johnson, however, said if the next regular election is not within six months, then the appointee can serve until the regular election after that.

In this case, McCain died on Aug. 25. That was just three days before last year’s primary and 73 days before the general election. Based on that, Johnson said, Ducey had the power to name someone to serve until the 2020 election when the final two years of McCain’s term will again be up for grabs.

Kielsky, however, wants Humetewa to rule that voters should get a chance to name someone of their choice long before the 2020 election — a person who could be of any political party.

Johnson, in his new legal filing, said the “inconvenience and expense of a special election outweighs any advantage to be derived from having a more prompt vacancy election.”

He told the judge a special statewide election in 2016 dealing with school finance cost the state more than $6.4 million. And in this case, Johnson said, a special election would require both a primary and general election.

Johnson also claimed that a special election would give an edge to “special interest groups and candidates with considerable self-wealth or funding” because of what he said the cost of having to finance an off-year campaign. By contrast, he argued, having the vote to fill the balance of the Senate term at a regularly scheduled election “creates a greater opportunity for a stronger pool of candidates to run.”

And Johnson said special elections have a lower turnout.

Johnson also brushed aside the complaint that the current practice is unfair because it means the person that the governor appoints has to be of the same political party as the person being replaced.

No date has been set for a hearing.

Federal judge rules McSally gets to keep U.S. Senate until 2020 election

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

Judge Diane Humetewa, a President Obama appointee, 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, violating the spirit if not the letter of the 17th Amendment.” He vowed to appeal.

Arizona law says if a Senate vacancy occurs more than 150 days from the next election then any temporary appointee can serve only until that election. But anyone named within 150 days of a vacancy can serve until the following election.

McCain died just days before the 2018 primary, freeing up Ducey under Arizona law to tap someone to serve through 2020.

He originally named former U.S. Sen. Jon Kyl to the post. But Kyl quit at the end of last year, allowing Ducey to name McSally, who by that time had lost her own Senate race to Democrat Kyrsten Sinema.

Kielsky found the whole process flawed, especially with that 27-month gap between McCain’s death and the 2020 election. Humetewa, however, wasn’t buying it.

“The 27-month period, on its own, is not unreasonable considering case precedent, and does not amount to an unreasonable restriction on plaintiffs’ right to vote,” she ruled.

Nothing in Thursday’s ruling affects vacancies in the U.S. House which constitutionally can be filled only through a special election, with no opportunity for a governor to name an interim replacement.

Libertarian pushes court to rule on challenge to U.S. senator appointment

U.S. Rep. Martha McSally, R-Ariz., delivers her signatures to the Arizona Secretary of State's office Tuesday, May 29, 2018, at the Capitol in Phoenix. McSally is officially running as a Republican for U.S. Senate seat being vacated by retiring Republican Sen. Jeff Flake. Women running for office have crossed another threshold with a record number of candidates for the U.S. Senate. Actually winning those seats and changing the face of the chamber are a different matter. Many of the women jumping into Senate races face uphill campaigns. (AP Photo/Matt York) — Then-U.S. Rep. Martha McSally, R-Ariz., delivers her signatures to the Arizona Secretary of State’s office Tuesday, May 29, 2018, at the Capitol in Phoenix. McSally ran and lost as a Republican for the U.S. Senate seat vacated by the retirement Republican Sen. Jeff Flake. Gov. Doug Ducey later chose her to fill out the term of John McCain. The former chairman of the Arizona Libertarian Party has challenged Ducey’s ability to name a replacement until the 2020 election. (AP Photo/Matt York)

Saying time is running out, the former chairman of the Arizona Libertarian Party wants the 9th Circuit Court of Appeals to order an election – and soon – to decide who fills out the term of John McCain.

In new legal papers, Michael Kielsky notes that a lawsuit to challenge the ability of Gov. Doug Ducey to name a replacement until the 2020 election was filed in November. Now, more than six months later, U.S. District Court Diane Humetewa has failed to act.

Kielsky told Capitol Media Services that, at the very least, every day of delay is a day that the voters of Arizona do not get to decide who represents them in Washington. Instead they are stuck with Martha McSally whom Ducey appointed earlier this year.

But Kielsky, who represents two registered Democrats, one Republican, one Libertarian and one independent, said there’s a more practical reason to try to push the process along.

He said if the case drags on much longer it will end up being within six months of the 2020 election, when McSally will have to put herself before voters if she wants to serve out the final two years of McCain’s six year term. And the law is clear that the governor does have the legal authority to appoint replacements within six months of an election, meaning McSally would get to stay through at least 2020.

“We’re going to get to some point, and that point is approaching more quickly of course, where the whole lawsuit would be moot,” Kielsky said.

Ducey, however, is in no rush to have the case decided and risk the chance that a court would determine that there has to be an election for the seat McSally occupies before 2020. In fact, the governor’s attorneys already have filed legal briefs with Humetewa not only defending his right to keep McSally in office through 2020, but telling the judge there is no reason to force her to make a decision quickly.

At this point it doesn’t appear that the appellate judges are interested in stepping in.

In an order late Friday, they ordered Kielsky to either dismiss the appeal himself or show them why they should not toss the case due to lack of jurisdiction.

That order did not go unnoticed by Dominic Draye, one of the governor’s attorneys.

“I think that racing to the 9th Circuit before the district court has even entered a ruling is a bad idea,” he said. And Draye said the Friday afternoon order by the appellate court suggests that the judges agree with that analysis.

Kielsky’s argument is based on the 17th Amendment to the U.S. Constitution which took the power to name U.S. senators away from state lawmakers and gave it directly to voters.

It also says when there are vacancies, the governor “shall issue writs of election to fill such vacancies.” Ducey has done that, setting the primary for Aug. 25, 2020, and the general election for Nov. 3 of that year, to determine who fills out the rest of the term which ends at the end of 2022.

Kielsky, however, contends the Constitution requires the appointment to be temporary “until the people fill the vacancies by election as the Legislature may direct.” And he argues that there should be a special election long before next year, an election that could result in voters choosing someone other than McSally, and other than a Republican, to serve through the end of McCain’s term in 2022.

McSally actually was Ducey’s second pick after McCain died last August.

He originally tapped former U.S. Sen. Jon Kyl who served through the end of the year and also provided a crucial vote to confirm Brett Kavanaugh to the U.S. Supreme Court. Kyl then went back into private practice.

That gave Ducey the chance to name McSally, who just months earlier had lost her own bid for the U.S. Senate as she was beaten by Democrat Kyrsten Sinema to fill the seat vacated by the retirement of Republican Jeff Flake.

Attorney Brett Johnson, one of the lawyers representing Ducey, has argued that the “inconvenience and expense of a special election outweighs any advantage to be derived from having a more prompt vacancy election.”

In his own legal filings, Johnson also told Humetewa that a special election would give an edge to “special interest groups and candidates with considerable self-wealth or funding” because of what he said is the cost of having to finance an off-year campaign. By contrast, he argued, having the vote to fill the balance of the Senate term at a regularly scheduled election “creates a greater opportunity for a stronger pool of candidates to run.”

Editor’s note: This story has been revised to add information on a late 9th U.S. Circuit Court of Appeals order.

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