On election day 2018, the voters of Arizona went to the polls to replace their retiring Republican senator, Jeff Flake. The election was so close that it took six days to reach a final result. But in the end, the Democrat Kyrsten Sinema defeated the Republican Martha McSally by 56,000 votes out of 2.8 million cast.
On January 3, 2019, Sinema was sworn in as a member of the Senate. Standing next to her, and taking the same oath, was McSally—appointed by the state’s Republican governor to take over the remainder of the late Senator John McCain’s term. The two will serve side by side until January 2021.
This anomalous result stems from an ambiguity in the Seventeenth Amendment that politicians have exploited for partisan advantage since the amendment was adopted in 1913. A new lawsuit, aimed at McSally’s appointment, seeks to resolve it. At stake in Tedards et al. v. Ducey et al. is nothing less than the principle that the Senate belongs to the people.
The Seventeenth Amendment specifies that U.S. senators are to be “elected by the people” instead of by state legislatures, as originally provided by the 1787 Constitution. Ratification came after more than two decades of sustained, organized mobilization by ordinary Americans outraged by the corruption of state legislators who sold Senate seats to the highest bidders. The hitch? Section 2 of the Seventeenth Amendment permits appointment by governors in the event of a vacancy: “The executive authority of each 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.”