Ky. Dems predict challenge to Senate replacement law amid focus on McConnell’s health

Questions about Senate Minority Leader Mitch McConnell’s health were renewed following a widely publicized freeze up on camera Wednesday. The event also re-ignited discussion about the 2021 Kentucky state law he pushed for ensuring that, should he vacate his seat, it would remain in Republican hands.

But Democratic Gov. Andy Beshear may not follow that law.

“I would imagine you would absolutely see a lawsuit on this,” Michael Abate, a Louisville attorney who’s worked for the Kentucky Democratic Party (KDP) in the past, said.

That law, passed by the GOP-led legislature in 2021’s Senate Bill 228, dictates that the governor select a replacement for any U.S. Senator vacating the office from a list of three provided by the state executive committee of the vacating senator’s party. Both of Kentucky’s U.S. senators are Republicans, including Rand Paul whose term is set to expire in 2028 and McConnell who’s term runs out in 2026.

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.

Beshear has often challenged the state’s Republican legislative majority, which is dominated by roughly 80-20 GOP majorities in both chambers.

When asked about what Beshear might do should a vacancy occur, McConnell’s office referred to his comment to reporters after the incident that he was “fine.” His office also pointed to the work he was doing Thursday in Washington, delivering remarks on the Senate floor and meeting with groups like Commerce Lexington in the Capitol. A McConnell aide stated that on Wednesday the senator felt “light headed” and that after the freeze-up he came back and was “sharp” during a Q&A.

The question of whether the governor might appoint a Democrat instead of a Republican to fill a GOP-filled senate seat could become moot if Beshear loses his impending re-election challenge to Republican Attorney General Daniel Cameron. Cameron, who some consider to be a McConnell protege, shot up through the ranks of the Kentucky GOP with a decisive win to his current post in 2019.

Another attorney who’s worked for the KDP concurred with Abate. Anna Whites, a Frankfort lawyer, said that a legal challenge over the vacancy replacement procedure, should one occur, is almost assured if Beshear is governor when it happens.

“I think there will be immediate litigation, and I think that it will be aggressive on both sides. It’ll be fun to watch, and I think it is something that should be litigated because it has probably as much impact as any election,” Whites said.

Under the newly passed law, an appointment would last no longer than 18 months, 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.

The old law stated that the governor could choose whoever they please for the post and that an election to fill the vacancy would take place during the next congressional election cycle, which takes place once every two years.

The Kentucky Senate GOP Floor Leader, Damon Thayer of Georgetown, expressed disappointment that the conversation regarding a senate vacancy was even taking place regarding the U.S. Senate minority leader.

“I think it is ghoulish and morbid that the Democrats are even having this discussion. I have faith that Leader McConnell’s health is good and that what happened yesterday was a result of the heat and humidity in the Eastern half of this country,” Thayer said.

The Kentucky Senator also suggested that the discussion is part of a pattern of Kentucky Democrats not wanting to follow the law, which he said “needs to be followed regardless of people’s agreement with it or not.”

He also stated that political attention in Kentucky should be squarely focused on Cameron’s challenge to Beshear in November.

“I think it’s a moot point and we all need to get back to focusing politically on the governor’s race — and clearly the governor’s hearing footsteps. This is a 50/50 race and Andy Beshear knows it,” Thayer said.

Jared Smith, a Democrat-aligned lobbyist and consultant who led Beshear’s 2015 attorney general campaign, emphasized that mandating that the governor pick from a list created by someone else goes against the governor’s traditionally-assigned power to make appointments.

Smith said that he’d “say the same thing if it was a Republican governor in the same situation” who had to face the prospect of replacing a senator of the opposite party.

Smith added that it’s no secret in the Capitol halls that Beshear might defy the 2021 bill, Smith said.

“If Mitch does leave office, I think (Beshear) will appoint who he wants to appoint and let them challenge it in court. That’s not really a hush-hush secret in Frankfort,” Smith said.

The governor already presaged such a challenge in his veto message on the bill.

The constitutional argument

Citing the U.S. Constitution’s 17th Amendment – passed in 1912, the amendment states that the legislature “may empower the executive” to make temporary appointments to fill a senate vacancy – Beshear vetoed the bill when it was passed. That veto was later overridden on a party line vote.

In that message, Beshear pointed out that the intent of the amendment was to shift the nation away from state legislatures appointing U.S. senators and toward the voters electing their senator. He said that involving an unelected state party board in the appointment process goes against that intent and “upends” precedent.

“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.

He also noted that some legislators sit on their state parties’ executive committees, raising some ethical questions about their participation in the appointment process.

As of mid-2022, according to Pew Research Center, 35 states allow their governors to appoint replacements to the U.S. Senate without any restrictions. 11 states are like Kentucky in that they allow the governor to appoint with some limitations – seven of the 11 have state parties provide a list like Kentucky – and four states fill U.S. senate vacancies via special election only.

Abate said that an argument could be made in support of Beshear’s constitutional intent comment in the veto message.

“Let’s not lose sight of the fact that the whole point of the 17th Amendment was to take the selection of senators away from state legislators, which is how it was done until that point in time… One could read that through the lens of history and say that framers of that amendment were trying to take the power away from legislators to control the appointment. So, viewed through that lens, I think you could probably make a pretty strong argument that (the party) can’t say ‘pick one of our three friends here,’” Abate said.

Beshear’s office has yet to comment on what they would do should a vacancy occur.