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Fixing the Glitch


Lotta folks been asking what will happen if Senator McConnell isn’t able to serve the rest of his term as the senior Senator from the Commonwealth of Kentucky. Here’s a quick explainer:

Senate Bill 228 would require the governor to appoint someone to temporarily fill a vacancy left by a U.S. Senator from a list of three names given to him by the executive committee of the political party of the senator who formerly held the seat, adding Kentucky to a list of at least six states that require an appointed senator to be the same party as the person who previously held the office. That appointment would last no longer than 18 months, though, requiring Kentucky to hold a special election to fill the vacancy for the remainder of the vacated term. Instead of just using the regular election process, the bill sets up a series of potential scenarios for how the next senator would be elected…

▪ If the Senate seat is vacated more than three months before a regular election, candidates would have to file their petitions to run by the fourth week of August. All candidates, regardless of political affiliation, would be put on the ballot. The two candidates who get the most votes on the day of the general election would enter a run-off election held 70 days later. The winner of that would fill the unexpired term.

▪ If the Senate seat is vacated less than three months before a regular election, and there is a regular election the next year, the next person would be elected using the regular election process the following year.

▪ If the Senate seat is vacated less than three months before a regular election, and there is not a regular election the next year, the governor would have to call a special election within 30 days to be held after 60 days but no later than 90 days. Candidates would have to file their petitions no later than 49 days before the election. All candidates would be on the same ballot and a candidate would have to get a majority of votes to be elected. If no candidate gets a majority, the top two vote-getters would have a run-off election 49 days after the special election.

▪ If there’s already a Senate election planned for that seat in the year when the office is vacated, the person appointed would fill the seat until the person who wins the election is sworn into office in January.

This procedure is quite recent in vintage, and was obviously designed to help Republicans hold on to McConnell’s seat in the case of some sort of unpleasantness. Nevertheless, it seems to me that this is one of the exceedingly rare occasions in which GOP electoral advantage and public policy dovetail; giving the governor power to select whomever s/he wants to fill the seat of a departed Senator makes the entire process more arbitrary, less democratic, and more dependent upon the health of extremely old people. Making the governor choose a replacement from the party of the departed Senator is probably a process that more states should go with.

In this particular case, the situation is complicated by the fact that we’re in the middle of a gubernatorial election. If Mitch determines he can’t continue to serve at some point in the next week (August 3 if I’m reading the statute correctly) the replacement election would happen on November 3, 2023. I doubt that the GOP would even bother submitting a list of three candidates in that eventuality… unless they want to put heavy pressure on Beshear in advance of the election. If it happens after August 3, then the replacement would be up for re-election for the last two years of McConnell’s term in November 2024. The GOP might still delay submitting the names to fill the seat in the hopes that Daniel Cameron will unseat Beshear in November. If Cameron wins he gets to pick the replacement Senator and everything in uncomplicated.

Andy, however, may have other ideas:

Abate said Beshear would likely push back against the law in one of two ways: ignore the law and appoint the replacement himself or sue against the law. “Beshear either says, ‘hey, Republican Party, thank you for your list, but I’m appointing whoever I want’ and then that immediately gets challenged in court, or you could see Beshear taking the route of filing a lawsuit,” Abate said. “I mean, he’s got the guts to defy it,” Abate added.

Notwithstanding that the bill is sound from a general public policy perspective, I’m not exactly going to cry if Andy decides to nominate Charles Booker or someone (it absolutely would not be Charles Booker) to McConnell’s seat, then lets the legal chips fall where they may. The argument against the current law rests on an interpretation of the 17th Amendment:

“The bill… upends a century of precedent by delegating the power to select the representative of all Kentuckians to an unelected, unaccountable committee of an organization that represents only a fraction of Kentuckians. In doing so, Senate Bill 228 is contrary to the United States Constitution. The Seventeenth Amendment does not authorize legislatures to direct how the Governor makes an appointment to fill vacancies, and the legislature may not impose an additional qualification on who the Governor may appoint beyond the qualifications for a United States Senator set forth in the Constitution,” Beshear wrote.

I don’t pretend to be a lawyer on the internet so I have no idea how this might actually play out. I’m not even sure where a challenge to the law would happen, whether in federal court (good luck with that) or in Kentucky state court (also good luck with that). Moreover, if Andy were to try this gambit, I’d say that impeachment proceedings are very nearly 100% likely. The rules for impeachment in Kentucky are the same as in the federal government; House votes to impeach by simple majority, Senate convicts by 2/3rds supermajority. The GOP holds an 80-19 advantage in the House and a 30-7 advantage in the Senate, so it’s not gonna be a nail-biter. Lieutenant Governor Jacqueline Colman then becomes governor, but the GOP might just be pissed off enough to impeach her as well. The next in line after that would be the President of the Senate, who is a Republican.

So… it could be fun. If Beshear loses in November I could definitely see him just YOLO-ing to see what would happen (“I nominate my dad!”). If he wins the calculus is more complicated. Also, if anyone thinks that I’m misreading the law, there’s a good chance that you’re correct; please note thus in comments.

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