Sen. Lindsey Graham’s Sudden Passing Raises Questions About Senate Vacancies

Senator Lindsey Graham from South Carolina has passed away unexpectedly on Saturday night. My thoughts and prayers are with his family during this difficult time.

His death has shifted focus to the process by which the U.S. Senate fills vacancies. This aspect is primarily managed by state laws, though it has federal constitutional implications.

In South Carolina, the rules are fairly straightforward yet a bit intricate. Republican Governor Henry McMaster will appoint an interim senator to serve until January 3, 2027. Given that Graham had secured the Republican nomination for the upcoming general election in November, a special primary election will take place on a compressed timeline.

It’s a complex situation, but at least it’s clear.

Contrastingly, Kentucky’s circumstances are more uncertain.

With ongoing concerns about Senator Mitch McConnell’s health and his announcement about not seeking re-election, discussions have stirred around what would happen if his seat were to become vacant before his term concludes.

Regrettably, many analyses assert claims that are only partially accurate.

A common assertion is that the Kentucky governor would appoint a successor from a list of three names provided by the outgoing senator’s party, which used to be the case. However, this is no longer true.

On the flip side, there’s the prevailing belief that the governor has no authority for appointments because the Kentucky General Assembly revoked that power in 2024. While this may ultimately be legally correct, it’s less straightforward than many commentators imply.

Kentucky’s legal framework is trickier than headlines suggest.

Before 2024, Kentucky law explicitly allowed the governor to appoint a temporary U.S. senator, but required the choice to be made from a list of three candidates suggested by the outgoing senator’s party. This compromise ensured some level of partisan continuity while also limiting the governor’s power.

However, in 2024, the Republican-dominated General Assembly repealed the specific appointment law despite Democratic Governor Andy Beshear’s veto.

That’s a fact that isn’t up for debate.

Still, this repeal has led many to assume that the governor has zero appointment authority. Yet, that assumption may not be lasting.

The law enacted in 2024 replaced the former Senate-specific appointment clauses and introduced a requirement for special elections to address vacancies. This change reflects the Legislature’s intention for the populace—rather than the governor—to choose their senators.

But a special election raises another question: who would take the position in the interim?

This is where matters get more convoluted.

Kentucky still has a general vacancy provision allowing the governor to make appointments when “there is no other provision of law for filling a vacancy in any office.”

Does a new statute mandating a special election constitute a “separate legal provision” for filling vacancies? Or does it leave interim vacancies to be filled by the general appointment law?

Legal opinions on that could very well differ.

Those asserting the governor lacks appointment authority argue that the Legislature’s intent was clearly to abolish interim appointments altogether. They reference the rationale behind the 2024 Act, asserting that temporary appointments would be inconsistent with its aim.

That’s a valid point worth discussing. But there’s more at play.

Although Congress eliminated the Senate’s specific appointment law, general vacancy provisions are still in place. Courts usually try to interpret laws in a harmonious manner, avoiding implied nullification.

Therefore, the two legal clauses may be interpreted together. The General Vacancies Act permits temporary occupancy of offices, while the Election Act provides for permanent replacements.

Whether Kentucky courts will accept this interpretation remains to be seen.

Additionally, legal uncertainties go beyond statutory issues. The Kentucky Constitution features a vacancy provision that some believe could restrict the Legislature’s ability to rescind the governor’s appointment authority. Courts have yet to directly address how these provisions interact with the 17th Amendment and the Congress amendments made in 2024.

Moreover, the idea that rules will shift depending on whether a vacancy arises before or after August 3 is misleading. This date only comes into play when “the unexpired term does not end at the next annual election.” In McConnell’s case, since the term concludes at the next election, the Kentucky Constitution stipulates that “the remainder of the term shall be filled by appointment.”

Let’s dig deeper—does Kentucky’s constitutional appointment authority conflict with the Seventeenth Amendment?

The 17th Amendment enables state legislatures to authorize temporary gubernatorial appointments but does not mandate it. That decision remains at the discretion of Congress.

Whether this provision overrides any contradictory state constitutional provisions continues to be unresolved.

This indicates that Kentucky is faced with a multitude of unresolved legal questions, both statutory and constitutional.

It seems likely that Kentucky courts will determine the 2024 law successfully eliminates all types of temporary appointments.

Or they might decide that the general vacancy law stays effective until a special election happens.

There’s also the possibility that courts will conclude the Kentucky Constitution uniquely grants the governor temporary appointment powers.

Or, perhaps it could be determined that the Kentucky Constitution is overridden by the 17th Amendment, leaving it to Congress to decide whether interim gubernatorial appointments are permitted until a special election is conducted.

The main takeaway is that none of these interpretations are definitively correct. Importantly, no court has ruled on these dilemmas.

That makes the bold assertions circulating in news articles and TV discussions somewhat hasty.

There’s a certain irony here. Lawmakers aiming to make Senate succession more democratic may have inadvertently created confusion, especially at a time when clear answers are crucial.

If a vacancy arises tomorrow, the initial election may be between rival candidates; or it may occur in the Kentucky Supreme Court amongst competing attorneys.

The public deserves more than mere confident assertions rooted in shallow analysis. If legal foundations are truly uncertain, we ought to acknowledge that.

Kentucky’s Senate Vacancies Act warrants transparency. The same applies to its citizens who may one day rely on it.