The biggest question, however, might be who will step up to fill the seat in a state where Democrats are increasingly competitive in statewide elections.
While McConnell has not indicated he will resign, the 81-year-old Senate minority leader has been repeatedly asked about his intention to run for reelection in 2026. After he inexplicably froze in reaction to a reporter’s question Wednesday on the subject—following a similar incident in July—talk has shifted to whether McConnell has the endurance to finish his term and, if not, who would replace him.
In most states, interim replacements for indisposed political leaders are typically appointed by the state’s governor—in this case, Democrat Andy Beshear.
McConnell, a Republican, already has an insurance plan in place for such a scenario. In March 2021, Kentucky’s GOP-led Legislature voted to override Beshear’s veto of legislation McConnell had backed restricting the governor’s ability to fill a vacancy if one of the state’s U.S. senators dies or leaves office early.
Up to that point, Kentucky, unlike other states, had allowed its governor to choose anyone to temporarily fill vacancies, regardless of the politician’s party. But with a Democrat in office and McConnell growing older, some wondered whether conservatives in the GOP-led state were risking the potential for a state traditionally considered a lock for Republicans to have one of its congressional seats go blue.
Today, Kentucky’s governor needs to consider a predetermined list from the state Republican Party leadership to fill vacancies, with voters deciding who will fill out the remainder of a lawmaker’s term in a special election.
After McConnell’s latest episode, however, some have openly questioned whether Beshear could defy the state GOP and appoint a replacement from within the Democratic Party. In interviews with the Lexington Herald-Leader Wednesday, several attorneys previously affiliated with the Kentucky Democratic Party suggested Beshear could decide to name a Democrat to fill the seat, potentially prompting a lawsuit challenging the legality of the 2021 law.
“I would imagine you would absolutely see a lawsuit on this,” Michael Abate, a Louisville attorney who’s worked for the state party in the past, told the newspaper.
Such a case would likely revolve around the legislation’s legality and a court’s interpretation of the Constitution’s 17th Amendment, which removed the power of appointing U.S. senators from a legislature and put it into the hands of voters. However, under the law, legislatures can “empower” the state’s governor to fill vacancies, though the parameters under which they can limit them are vague and undefined.
The amendment reads: “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.”
An attorney for the Kentucky Republican Party declined to comment when contacted by Newsweek, citing the potential for future litigation on the topic.
An expert on Kentucky election law, however, suggests such a challenge by state Democrats could face an uphill battle in court.
“While it’s always hard to predict what a court will do, I don’t think the Kentucky law is unconstitutional,” Joshua Douglas, a professor at the University of Kentucky’s law school, told Newsweek. “The 17th Amendment states that the Legislature ‘may empower the executive’ to fill a vacancy, and I think a court would say that empowering the executive can include parameters under which the executive may act.”
That said, there have been several recent lawsuits under the 17th Amendment that affirmed the governor’s right to fill vacancies, Douglas noted.
After Arizona Senator John McCain‘s death in 2018, a team of lawyers in Chicago and Arizona launched a failed legal bid to let Arizona voters, not Governor Doug Ducey, decide who would fill the seat. Ducey was ultimately successful in the case. A similar lawsuit took place following the resignation of Barack Obama from his seat representing Illinois in the U.S. Senate to run for president. The suit was won by the state’s governor.
That said, Kentucky’s situation is drastically different. It’s not necessarily about a governor’s right to appoint who he wants versus the rights of voters. It’s about the Legislature’s right to define the parameters of the governor’s authority.
“In Kentucky, the governor’s authority to appoint someone due to a vacancy comes not directly from the 17th Amendment but from the Legislature empowering the governor to do so,” Douglas said.
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