951 F.3d 1041
9th Cir.2020Background:
- Senator John McCain died August 25, 2018, three days before Arizona’s primary and with over four years left in his Senate term.
- Arizona amended A.R.S. § 16-222 (May 2018) to postpone a vacancy election when a vacancy occurs ≤150 days before the primary, filling the seat instead at the second subsequent general election (here, November 2020) and requiring the Governor to appoint a temporary replacement of the same party.
- Governor Ducey appointed interim Senators (Jon Kyl, then Martha McSally); the interim appointee would serve roughly 27 months before the 2020 election.
- Five Arizona voters and a would‑be candidate sued under § 1983, challenging (1) the timing/duration under the Seventeenth Amendment, (2) First and Fourteenth Amendment vote‑burden claims, and (3) the statutory mandate to appoint and its same‑party requirement.
- The district court dismissed; the Ninth Circuit affirmed: (a) Seventeenth Amendment allows the State discretion (and Valenti/Rodriguez foreclose plaintiffs’ narrower reading), (b) the timing is a reasonable, nondiscriminatory burden under Burdick, and (c) plaintiffs lack standing to challenge the appointment/same‑party rules.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Seventeenth Amendment: timing of vacancy election and duration of interim appointment | The Amendment requires a prompt election (generally within ~1 year); long interim appointments violate its ‘‘temporary’’ requirement | The Amendment gives states broad discretion to set timing up to the end of the term; Arizona’s schedule is lawful | Text is ambiguous but controlling precedent (Valenti, as read by Rodriguez) permits delays up to ~29 months; Arizona’s schedule permissible |
| First & Fourteenth Amendments (vote burden) | A 27‑month delay severely burdens the right to vote and equal representation | The delay is reasonable and justified by important state interests (cost, turnout, administrative efficiency, voter confusion) | Assuming a burden, it is reasonable and nondiscriminatory under Burdick; important state interests justify the timing |
| Statutory appointment mandate ("shall appoint") | The statutory mandate that the Governor must appoint violates Seventeenth Amendment wording (legislature only "may empower") and other constitutional provisions | The legislature may empower the Governor; the appointment statute is valid | Dismissed for lack of standing: plaintiffs did not plead traceability because Governor stated he would have made the same appointment regardless of the statute |
| Same‑party requirement for appointee | Rule infringes Qualifications Clause and First Amendment (state imprimatur of a partisan viewpoint); excludes some candidates | Requirement is within state authority and plaintiffs lack standing | Dismissed for lack of standing and lack of redressability (no traceable injury because Governor would have appointed the same party/person) |
Key Cases Cited
- Valenti v. Rockefeller, 292 F. Supp. 851 (W.D.N.Y. 1968) (three‑judge court upholding long vacancy interval; later summarily affirmed)
- Phillips v. Rockefeller (summary of Valenti affirmance), 393 U.S. 405 (1969) (Supreme Court summarily affirmed the district judgment)
- Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (relied on Valenti; indicated states may postpone special elections and use appointments)
- Burdick v. Takushi, 504 U.S. 428 (1992) (sliding‑scale framework for evaluating burdens on the right to vote)
- Judge v. Quinn, 612 F.3d 537 (7th Cir. 2010) (related circuit precedent on Governor’s duty to issue writs and appointment issues)