For decades in Kentucky, the power to fill a vacancy in the U.S. Senate was reserved exclusively for the governor, regardless of whether an incumbent stepped down, died in office or was expelled from Congress.
But with Gov. Andy Beshear, a Democrat, in the state’s highest office, Republican lawmakers used their legislative supermajorities to change the state law in 2021.
Under the new law, a state executive committee consisting of members of the same political party as the departing incumbent senator will name three candidates the governor can choose from to fill the vacancy on a temporary basis. Then a special election would be set, and its timing would depend on when the vacancy occurs.
Though the Times’ piece doesn’t mention it, I expect there would be a legal challenge to this law if McConnell must resign for health reasons:
Though his veto was overridden, Beshear wrote that the changes of SB 228 violated provisions of both the federal and state constitutions on how U.S. Senate vacancies could be filled.
Beshear said the changes violate the 17th Amendment of the U.S. Constitution, which sought “to remove the power to select U.S. senators from political party bosses.”
“It delegates the power to select a representative to an unelected, unaccountable political committee that only represents a fraction of Kentuckians, when a senator is supposed to represent all of us,” Beshear wrote.
The 17th Amendment states 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.”
Beshear also wrote in his veto statement that SB 228 violates Section 152 of Kentucky’s constitution, which states a governor “shall” fill appointments or vacancies in the state at large. The governor wrote that “no conditions, qualifications, or limits are placed on that appointment power” in that section of the constitution.