Could This Possibly Be Right?

In 1992, the Legislature--at Governor Symington's request--changed the process of filling a Senatorial vacancy from special election to appointment.

However, the Republic's Linda Valdez interviewed Terry Goddard about his future plans and the article included the quote below.  She and Goddard are claiming that McCain could time his resignation in a way that forces a special election.  Could that possibly be right?   Someone help me out here.

If McCain wins the White House without first resigning his Senate seat, it will be filled by a Republican appointed by Napolitano. But if McCain decides to resign his Senate seat in the next few months -- something Goddard says he might do if he wants to exert influence over who his successor will be -- then a special election could bypass a Napolitano appointment.

Comments

[Matt]

Is 16-222 perfectly clear? What is the difference between "When" and "For"? I wish I had studied law...

[Frank Coz]

There is no special election, as I read the law, in the case of a US Senate vacancy. There is an appointment by the governor (appointee is of the same party as the person who vacates) followed by the next general election.

In this case, November 2008 if McCain resigns this year, or November 2010 if stays in his Senate seat yet wins the presidency.

ARS 16-222

C. For a vacancy in the office of United States senator, the governor shall appoint a person to fill the vacancy. That appointee shall be of the same political party as the person vacating the office and shall serve until the person elected at the next general election is qualified and assumes office.

[Ann]

I believe if the resignation is after the primary but before the general, a special election is required.

If it is before the primary or after the general, an appointment is made.

Or so I've been told....

[Avid Reader]

This layman doesn't see a way for a special election. Statute requires a primary election nine weeks before a general. If the vacancy occurs during that nine weeks, there can't be people on the general election ballot. If the vacancy occurs before the primary and after the deadline to turn in signatures to qualify for the ballot, then the appointee would serve, methinks, until Jan 2011. It has to do with the definition of "general election," which is not a one-day event in November but a period of time spanning six months or so.

[Sarah James]

He could be confused since didn't he fall into that? Didn't Fife, him and someone else tie in 1990? and it went to special election ?

Or I wonder, if the appointment comes before the general but in that between months after the filing deadline, I wonder because there would still be an election as required by law, but that ARS does not address the timing, only that there must be at the next general election.

If so, would that not lead to a round robin of sorts, open primary special election?

So the real question is not the law that requires an election to be held at the next general election but rather what are the laws that govern the political primaries.

[JoelF]

I agree with all of the comments, that there is a special election for a House vacancy but not a Senate vacancy. That being said, Greg, you can't seriously read the article as quoting Goddard that there is a Special Election. That's obviously Linda's thought only.

[Sarah James]

I think the above comentators are right, there MUST be an appointment, but a very short lived appointment cause there would be an open primary ?

I guess you gotta wonder what if he or she said "bypass" or if she interpreted it for him.

[Avid Reader]

The last day to turn in signatures for an open US Senate seat would be June 4, 2008. I don't think you can collect signatures unless the seat is actually open, meaning there will be an election, but I may be wrong, though you'd certainly have a petition challenge if you did. If McCain were to resign in the next couple months, the Gov would make an appointment, and both parties would have candidates collecting signatures to get on the ballot to serve out the last two years of McCain's term. The appointee would likely also be collecting signatures and would probably do a poor job as interim Senator or campaigner or both. If McCain resigns say only a few days before June 4 no one would be on the ballot, and the "next general election" would be in November 2010, when the term expires anyway.

If I were McCain I would secretly choose my successor today, get everything in place, resign at the last possible minute (mid-late May?), form Mr X's committee, and raise and spend a couple million getting signatures in a BIG HURRY. (Kyl and Pederson spent about $30 million together, so that's a good investment). That signature work could be done, if you have lined up the right firms. The R's would have the head's up, and it's entirely possible that not only would only one R be on the primary ballot, no D would have had time to collect signatures, nor even the R appointed by the Governor. So her appointing power is irrelevant if this occurs.

[Darryl Light]

Avid, I don't think you understood the above poster's point. The law is clear. There must be an election at the next general election. It makes no reference to time periods or else you would clearly be 100% right. So one then has to go back and look at all the ARSs that cover primary elections for federal candidates as the open primary election has been used a few times in our past and depending on where it is in the ARS, it could take precedence. It really is a matter of opinion though that the high court may have to answer for us.

[Avid Reader]

Yes, I see the potential for different interpretations, and while the law is clear the definition of general election is not. I am offering the interpretation that a general election is defined as one where there is a primary for it, in which parties choose their one candidate, nine weeks before the general election. And the primary is also similarly defined. I know it sounds funny, but sometimes the "next general election" might not be the next general election.

You can't just go out and have a baby, you have to be pregnant for nine months or so beforehand.

I do find it amusing that in our age of one-person-one-vote, that a vacant US senate seat would be filled by appointment (so undemocratic!) compared to the way a US House seat is (special election). I have not read Baker v Carr in some time but that would be terrific grounds for a challenge to the statute that grants her appointment power.

[DGN]

"I do find it amusing that in our age of one-person-one-vote, that a vacant US senate seat would be filled by appointment (so undemocratic!) compared to the way a US House seat is (special election). I have not read Baker v Carr in some time but that would be terrific grounds for a challenge to the statute that grants her appointment power."

Actually, there is a great argument for going back to the old way of appointing Senators. It's only been about 90 years or so that we changed the method for selecting US Senators.

The US Constitution originally gave power to the various state legislatures to select senators. This had the effect of ensuring that senators actually paid attention to the effect that federal laws had on the states. Tick off enough legislators back home and ol' Senator Puffhard in DC might be out of a job when his term is up.

Popular election of Senators has resulted in sending people to DC who can vote just about any way they want for a good four years or more before people pay attention to that senator's re-election bid.

In any case, Arizona is hardly unique in allowing the Governor to appoint a senator in case of a vacancy. At least our state law requires the vacancy to be filled by someone of the same party - something few other states require.

[todd]

DGN
The election of senators by state legislatures wasn't a stroke of genius, but rather a 1) compromise to get the Constitution ratified by the States and 2) an attempt to create a bulwark against popular will and to make sure that monied interests were protected.

The history of state legislatures electing senators is filled with long stints of empty seats leading to periods when some states lacked any representation.

We would be better off ditching the idea entirely. Does it really make sense to have a state with 670,000 people (Alaska) have the same voice in the Senate as one with 37 million (California) .

[Avid Reader]

Oh, now Todd has really set things off. First off, I don't think there's a single word the US Constitution that is not a product of compromise.

Let's leave aside that none of the people who wrote, debated, and signed the Constitution were elected to do so. They were there to "revise" the Articles of Confederation. Leave aside the fact that the Declaration was created the same way. And also that fringe interest groups with a couple bucks that can get in to see small-state US Senators to lobby their cause (because those guys need only a few dollars to stay in office) are really benefitting from the apparently undemocratic procedure.

Speaking of politics not making sense, good political sense is made up of more than just a quality reflected by a number. It makes as much sense to have a bicameral legislature with different terms lengths, staggered terms, sizes, method of election, internal rules, apportionments, etc., as it does to have three separate branches of government. Anyone want to ditch that idea as well?