Tedards v. Ducey

• Decision Date: 27 February 2020
• Docket Number: No. 19-16308,19-16308
• Parties: William Price TEDARDS, Jr.; Monica Wnuk; Barry Hess; Lawrence Lilien ; Ross Trumble, Plaintiffs-Appellants, v. Doug DUCEY, Governor of Arizona, in his official capacity; Martha McSally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

951 F.3d 1041

William Price TEDARDS, Jr.; Monica Wnuk; Barry Hess; Lawrence Lilien ; Ross Trumble, Plaintiffs-Appellants,

v.Doug DUCEY, Governor of Arizona, in his official capacity; Martha McSally, Defendants-Appellees.

No. 19-16308

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 13, 2019 Pasadena, California

Filed February 27, 2020

M. SMITH, Circuit Judge:

In 1913, the Seventeenth Amendment fundamentally changed the structure of our national government by providing that United States Senators be "elected by the people." U.S. Const. amend. XVII para. 1. Prior to the adoption of the Seventeenth Amendment, the Constitution gave the power of choosing Senators to the state legislatures. Id. art. I, § 3 (amended 1913). The original provision also empowered a State Governor, in the event of a vacancy arising during a legislative recess, to make a "temporary" appointment pending the next legislative session. Id. The Seventeenth Amendment retained this vacancy and appointment provision in modified form, and it is that portion of the Amendment with which we are primarily concerned in this case. The relevant portion of the Amendment reads as follows:

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.

U.S. Const. amend. XVII para. 2.

Arizona Senator John McCain died in August 2018, leaving vacant one of Arizona's two U.S. Senate seats. Pursuant to Arizona law, the people of Arizona will fill the vacancy by election in November 2020. By that time, Arizona will have had a "temporary" appointee, currently Senator Martha McSally, for over two years. Plaintiffs, Arizona voters and a would-be Senate candidate, challenge the constitutionality of the Arizona statute that governs appointments and elections in the aftermath of a Senate vacancy.

First, Plaintiffs argue that the November 2020 vacancy election date and the 27-month interim appointment duration violate the time constraints implicit in the Seventeenth Amendment. The district court dismissed this challenge for failure to state a claim, finding no authority for invalidating a state statute on this basis. We affirm. Although we find Plaintiffs' interpretation a possible one based on the text and history of the Seventeenth Amendment, we conclude that it is foreclosed by binding precedents.

Second, Plaintiffs argue that the November 2020 vacancy election date impermissibly burdens their right to vote as protected by the First and Fourteenth Amendments. The district court also dismissed this challenge for failure to state a claim, finding that important State regulatory interests justify what is a reasonable and nondiscriminatory restriction on Plaintiffs' right to vote. We agree, and affirm.

Third and finally, Plaintiffs challenge Arizona's statutory mandates that the Governor must make a temporary appointment and must choose a member of the same party as the Senator who vacated the office. Plaintiffs argue that the appointment mandate violates the Seventeenth Amendment's specified separation of State powers, as well as the Fourteenth Amendment and the Elections Clause. The district court dismissed this challenge for failure to state a claim, rejecting Plaintiffs' interpretation of the relevant Seventeenth Amendment language. Plaintiffs argue that the same-party restriction violates the Qualifications Clauses in the Seventeenth Amendment and other constitutional provisions, as well as the First Amendment and the Elections Clause. The district court dismissed this challenge for lack of standing. The district court found no harm on the basis of representation by a Republican and no redressability where the Republican Governor would appoint a Republican anyway. We affirm both of these dismissals for lack of standing.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

In November 2016, the people of Arizona reelected Senator John S. McCain III (Republican) to a sixth term in the United States Senate. In July 2017, doctors diagnosed Senator McCain with an aggressive brain tumor whose victims have only a fourteen-month average survival time.¹

In May 2018, Governor Ducey signed into law an amendment to Arizona's congressional vacancy statute, Arizona Revised Statutes (A.R.S.) § 16-222. See 2018 Ariz. Sess. Laws 2308. Pursuant to the amended law, if a Senate seat becomes vacant 150 days or fewer before the next primary election (or between the primary and the general election), the people of Arizona will not fill the vacancy by election until the following general election two years later. See A.R.S. §§ 16-222(A), (D).² The Governor must "appoint a person to fill the vacancy" in the interim,³ who is "of the same political party as the person vacating the office." Id. § 16-222(C). At the time the legislature passed this amendment, the August 2018 primary was already fewer than 150 days away. Senator McCain was still serving as Senator at that time.⁴

Senator McCain died on August 25, 2018, three days before the primary election. ⁵

Over four years remained in his Senate term. Consistent with the requirements of § 16-222(D), as amended, Governor Doug Ducey (Republican) issued a writ of election to fill Senator McCain's vacant seat in November 2020. Consistent with the requirements of § 16-222(C), Governor Ducey appointed former Arizona Senator Jon Kyl (Republican) to serve as Senator until the winner of the November 2020 election assumed office. Senator Kyl made clear that he would not personally seek election in 2020.⁶

At the time of these developments, the contest for Arizona's other Senate seat was already on the ballot for November 2018. Competing to replace Senator Jeff Flake (Republican), who had decided not to seek reelection, were Representative Kyrsten Sinema (Democrat) and Representative Martha McSally (Republican). Representative Sinema won the election with 50.0% of the vote compared to Representative McSally's 47.6%.⁷

In mid-December 2018, Senator Kyl announced that he would resign at the end of the year so that a subsequent appointee could serve the full two years of the 116th Congress and seek election in 2020.⁸ Days later, Governor Ducey announced that he had appointed Representative McSally to succeed Senator Kyl.⁹

At present, Senators Sinema and McSally represent Arizona in the United States Senate.

II. Procedural Background

In late November 2018, five registered Arizona voters—two Democrats, one Independent, one Libertarian, and one Republican—filed suit against Governor Ducey and Senator Kyl pursuant to 42 U.S.C. § 1983. Plaintiffs alleged that the Governor's implementation of A.R.S. § 16-222 violated their constitutional rights under the Seventeenth Amendment and several other provisions of the U.S. Constitution. Their amended complaint challenged the November 2020 date of the vacancy election (Count I),¹⁰ the 27-month duration and mandatory nature of the interim appointment (Count II),¹¹ and the same-party restriction on the interim appointee (Count III).¹² Plaintiff Hess later alleged that he sought to be considered for the interim appointment, but was barred from consideration as a registered Libertarian.

In late December 2018, Plaintiffs filed a motion for preliminary and permanent injunction. Plaintiffs sought an order directing that the election to fill the vacancy be held "as soon as practicable, and not longer than one year from the date the vacancy arose." Defendants, by then Governor Ducey and Senator McSally, moved to dismiss.¹³

In June 2019, after full briefing and oral argument, the district court granted Defendants' motion to dismiss. The court dismissed Counts I and II for failure to state a claim. The court disagreed that the Seventeenth Amendment constrains state discretion as Plaintiffs had alleged with regard to the date of the vacancy election, the duration of appointed representation, or the mandate that the Governor make an appointment. The court also concluded that the November 2020 vacancy election date was a reasonable burden on Plaintiffs' First and Fourteenth Amendment right to vote and was justified by important state interests. The court dismissed Count III for lack of standing. The court concluded that any harm attributable to representation by a Republican was too speculative to constitute a cognizable injury. The court further concluded that redressability was lacking because Governor Ducey could keep Senator McSally in place even without the statutory same-party requirement. Since it found no viable claims, the court denied Plaintiffs' motion for a preliminary and permanent injunction.

Plaintiffs timely appealed, and thereafter moved to expedite this appeal. We granted Plaintiffs' motion to expedite.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's grant of a motion to dismiss and all constitutional questions. Mahoney v. Sessions , 871 F.3d 873, 877 (9th Cir. 2017).

ANALYSIS

I. Seventeenth Amendment Challenge to Vacancy Election Date and Duration of Appointment

We begin with Plaintiffs' as-applied Seventeenth Amendment challenges to the November 2020 vacancy election date and the 27-month duration of appointed representation. We consider these two challenges together because both require an analysis of what, if any, implicit time constraints exist within the Seventeenth Amendment. The meaning of the Seventeenth Amendment has seldom been litigated, and no body of doctrine provides us with robust guidance as to its proper interpretation. We therefore undertake here to decipher the Amendment's meaning using multiple modes of analysis and sources of authority. After reaching a conclusion regarding that meaning, we turn to the law challenged in ...