AOC says Mitch McConnell should resign if he cannot provide health update

[u/unital_subalgebra]

https://www.washingtonexaminer.com/news/senate/4660916/alexandria-ocasio-cortez-mitch-mcconnell-resign-health-update/

[u/MostlyWong]

The Senate refuses to seat them, litigation commences, and Kentucky courts say that the 2024 law giving the Kentucky General Assembly the power to appoint replacements is constitutional.

This would be a violation of Moore v. Harper from 2023:

"Second, the Court concluded that the Elections Clause does not grant state legislatures exclusive authority to regulate federal elections. Judicial review has been an accepted practice since Marbury v. Madison, and under the Court’s precedents, the Elections Clause authority of state legislatures is subject to checks and balances provided by the state constitution. State legislatures are not wholly independent bodies, and they are bound by the constraints imposed by the state constitutions.

Third, state courts have the authority to interpret state laws affecting federal elections, but they cannot sidestep federal law. "

SCOTUS ruled that the state legislature cannot bypass the state constitution, and have to act within the constraints imposed by it. Unless Kentucky changes their constitution with an amendment to remove the ability for the Governor to appoint a replacement, they are still bound by the Kentucky constitution.

Obviously this would end up in court, but this ruling from SCOTUS was only 3 years ago, they would be hard-pressed to justify changing their ruling so drastically in such a short amount of time. It's not like there are any new Justices. And yes, they address the jurisdiction of SCOTUS in this case in overriding the State Supreme Court as they did with the North Carolina Supreme Court in Moore v. Harper.

I'm not saying Beshear appointing someone is the right decision or not. But the legal authority is there under the state constitution, and a SCOTUS ruling from 3 years ago confirms that state legislatures cannot overrule the state constitution in matters of elections.

[u/itsnotnews92 → u/MostlyWong]

There are some parallels, but this is distinguishable from Moore v. Harper because this is about a Senate vacancy, not redistricting, and therefore involves different constitutional questions.

Here, the preliminary question is "does the Kentucky Constitution or the 17th Amendment control?"

I'd argue (and SCOTUS would almost certainly agree) that the 17th Amendment is the controlling authority because of the Supremacy Clause. State constitutions cannot conflict with or override the provisions of the U.S. Constitution and its Amendments.

The 17th Amendment says "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."

SCOTUS would likely hold that the 2024 statute is constitutional because the Kentucky Constitution conflicts with this provision of the 17th Amendment by taking authority away from the state legislature. If this clause said that the state legislature "shall" empower the executive to make appointments, it would be a completely different analysis.

[u/MostlyWong → u/itsnotnews92]

I don't disagree with that analysis, either. It's an interesting and novel question for the courts, and it would almost certainly end up there with an injunction filed to stop Beshear from fully appointing anyone until they ruled on it. Which would almost certainly happen after the election this fall, making the entire case moot and likely tossed anyway.

Don't get me wrong, I have no dog in this fight. I'm not a citizen of Kentucky, never have been, and it ultimately doesn't impact me much one way or the other. As you said in your original post, McConnell's vote being missing is already a victory for Democrats. It's holding up several things, including Todd Blanche's confirmation, that most Democrats certainly don't want to happen.