William Price Tedards, Jr., et al. v. Doug Ducey, Governor of Arizona, et al.

Both the Ninth Circuit and Seventh Circuit have struggled to reconcile the text of Section 2 of the Seventeenth Amendment with this Court’s order summarily affirming a 1968 district court case allowing a 29-month delay of an election to fill a U.S. Senate vacancy. See Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968), aff ’d, 393 U.S. 405 (1969). While this Court broadly read that order in dicta in Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982), this Court has never interpreted the actual text of Section 2, which requires a particular procedure for setting an election date. Section 2 says that “when vacancies happen . . . the executive shall issue writs of election.” The text gives no role for the legislature except to “empower,” though not mandate, the executive to make a “temporary” appointment. In ARIZ. REV. STAT. § 16-222 (“A.R.S.”), used to fill the vacancy created by the death of Senator John McCain, the legislature sets the date— precluding the executive from issuing a writ, and mandating rather than empowering the Governor to make a “temporary” appointee, which in this case lasts 27 months. The two questions presented are: 1. In filling a Senate vacancy, does A.R.S. § 16- 222 conflict with the text of the Seventeenth Amendment, which says that state executives “shall issue writs of election” and limits the state legislatures to “empowering”—not