Partisan Legal Battle Could Cloud McCain’s Passing as AZ Governor Appoints Successor

//Partisan Legal Battle Could Cloud McCain’s Passing as AZ Governor Appoints Successor

By Josh Taylor

The death of Senate stalwart John McCain of Arizona on August 25 was necessarily and deservedly followed by an outpouring of bipartisan support of the late Senator’s legacy.  McCain certainly made waves in the Senate, at times leading his own party into unconventional territory.  His legacy in campaign finance reform arguably buoyed his run at the White House in 2008, and his history of Joe-Friday-just-the-facts-ma’am-ism in political discourse is a distant memory in today’s acerbic climate.  One need only recall a 2008 campaign event in which McCain pulled the microphone back from a woman declaring that Barack Obama was “an Arab” to know his character prevented him giving voice to fictional fears.  Days after his death from brain cancer, McCain is being touted as a civil servant who took both terms of that title extremely seriously.

Now, the seat that John McCain leaves vacant could serve as a lightning rod for the very divisiveness the Senator loathed.  Under Arizona law, the state’s governor, Doug Ducey, must fill McCain’s seat with a republican until a special election is held in 2020, the same year as the general election.  Several familiar Arizona names are reportedly on Ducey’s short list, including Ducey’s own chief of staff, Kirk Adams, who may even play the role of placeholder until Ducey himself runs for the seat outright in 2020.  Cindy McCain, the late Senator’s wife, is also on the lips of GOPers discussing the vacancy, among many others.

The potential legal battle lies in the hands of Arizona democrats who could stage a fight based around the timing of McCain’s death.  This is something that Arizona democrats noted was a sincere possibility earlier this summer should the vacancy have arisen then.  Arizona’s election guidelines state that a vacancy must occur “significantly before” the filing deadline for an election so that signatures can be gathered for placement of a candidate on the ballot.  The primaries for Arizona’s 2018 election cycle begin on Tuesday, August 28, 2018, so the filing deadline for that cycle would have been May 30, 2018, to comply with the 90-day filing deadline rule in Arizona’s election laws.  Effectively, under the current election rules in the state, McCain’s death past May 30 means that whomever Ducey appoints would serve until 2020.  Thereafter, a special election would take place to elect a replacement for the final two years of McCain’s current six-year term.

Arizona democrats could, however, mount a legal battle to try to have the seat on the ballot in 2018.  With Arizona’s junior senator, Jeff Flake, retiring soon, that would mean both of Arizona’s red seats would be up in a state that is slowly but surely turning purple in reaction to Trumpian politics.  The potential fight could very well be exacerbated depending on the type of republican Ducey selects.  A Trumpian republican will likely stoke the fires of democratic protest more than one in McCain’s own mold.

What’s arguably true in John McCain’s case cannot be said of other former presidential candidates: his failed candidacy did not define, taint, or un-do his political career.  However, the argument has been made that his adoption, albeit unwillingly, of Sarah Palin as his running mate in 2008 opened the door for Trump and candidates like him.  Despite becoming the unlucky GOP nominee to take on Barack Obama in 2008, McCain waged a strong campaign as a political “maverick”.  His time as a pilot and POW in Vietnam played substantially into that image and his campaign as a whole.  Throughout his life, those close to McCain remember a generally good humor about the most difficult of human experiences in Vietnam.

McCain soldiered on in the Senate almost immediately after his defeat, continuing to direct the fiscally conservative, militarily strong, and morally burdened wing of republicanism as fissures began to show within his own party.  Towards the end of his life, it was clear that he bore little resemblance to the populist republicanism that had replaced the candidates like himself and his presidential nominee successor, Mitt Romney.  In the days after his death, it became clear how McCain felt about the current state of his party: McCain made it explicitly clear that President Trump was not to be at his funeral.

That parting shot against Trump is certainly in the McCain vein, propelling principles even in his final days and in death.  Perhaps that principled and rules-based nature will subdue a rising possibility that a fight to fill his vacancy early will begin.  The Senate stands to shift considerably even if John McCain were still a part of it, however, his absence will certainly be felt in a time when “old-school” republicans and dwindling away into retirement, facing the reality that they can no longer compete with this new Trumpian wave.  The end of John McCain’s chapter certainly feels to many like the end of a GOP chapter.

Governor Doug Ducey has promised not to fill McCain’s vacant seat until after funeral services for the late Senator.  McCain will lie in state in the U.S. Capitol this week and will thereafter lie in state in Arizona.  A memorial service at the National Cathedral is scheduled for Saturday, and he will be laid to rest in Annapolis, Maryland.

By | August 27th, 2018|

About the Author:

For years, Josh has helped lawyers become more organized, productive, and profitable. A trained litigator, Josh came to Smokeball from a large east-coast law firm where his practice focused on franchise, insurance, marine, and general litigation. His work with Smokeball, and his continued passion for what he does each day, is driven by a desire to help lawyers and their staff do better in every way. Knowing well the stress and strain put on today’s legal professional, he regularly focuses on improving work and life in the law. He has traveled the country working with and learning from lawyers and their staff. Josh speaks regularly to bar associations about successful law firm practices and other legal topics. Recent notable engagements have been with the Chicago Bar Association, the Illinois State Bar Association, and the Missouri Bar’s Solo and Small Firm Conference. In addition to his work at Smokeball, Josh serves on the Writing Resource Center staff at The John Marshall Law School. Besides legal technology, his research interests include judicial decision-making, jury decision-making and psychology, and legal writing. He has written and overseen research exploring causal effects of sex/gender on federal appellate court decision-making, and assisted with research for a forthcoming textbook on judicial decision-making. Josh holds his J.D., cum laude, from Washington University in St. Louis, where he served as a Senior Editor of the Wash. U. Law Review, held the prestigious Thompson Coburn Research Fellowship, served as Research Assistant to then-Vice-Dean (now Chancellor) Andrew D. Martin, and clerked at the U.S. District Court for the Eastern District of Missouri. He holds a B.A. in Political Science and a B.M. in Music Performance with Honors Scholar distinction from the University of Connecticut, making him a Huskies basketball fan through and through. Follow Josh’s activity on LinkedIn, and keep up with new articles on the Smokeball Blog.

Leave A Comment