PHX Reporter

Sen. Martha McSally gets to hold on to her title as senator after a federal court rejected a claim that her 2018 appointment by Gov. Doug Ducey was unconstitutional.

The claim brought by five plaintiffs said that the time between Sen. John McCain's death and the next election to fill his seat was too long and Ducey's appointment violated the 17th Amendment that says voters choose senators.

A three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled that the governor is allowed to make temporary appointments in an event such as this and the tenure of McSally's appointment is not unreasonable.

Also rejected were claims that challenged the state law that requires the governor to fill a vacant seat with a person of the same party as the person who previously held it. 

According to the Arizona Daily Independent, the attorney for the five plaintiffs, each hoping to win the appointment, said he was disappointed in the ruling and is unsure if they will pursue any further action. 

McCain passed away just three days before the 2018 Arizona primary election. Earlier that year, in May, Arizona changed the law regarding how congressional vacancies are filled. Most replacements serve until the next general election, but the new law says that replacements for seats that become vacant within 150 days of the primary election will serve until the second general election. 

McSally was the Republican nominee for the state's other Senate seat when McCain died, so Ducey selected former Republican Sen. Jon Kyl to fill the seat. When Kyl announced soon after that he would be stepping down, Ducey selected McSally to fill the vacant seat. McSally was sworn in on Jan. 3, 2019 and is scheduled to serve until this November's election where she will be running to complete McCain's term which would last another two years. 

The lawsuit was originally filed when Kyl was chosen to take McCain's seat. The original request was that an election be held immediately to fill McCain's seat. A judge dismissed the suit last fall, saying the time in between McCain's death and the appointment did not violate the 17th Amendment. 

The ruling relied on a 1968 ruling that was upheld after the death of Sen. Robert Kennedy who was assassinated 60 days before the primary election. His replacement served 29 months before the next general election.