Crucial deadline in Mitch McConnell saga set to trigger never-before-tested law

Kentucky Law Sets Monday Deadline for Potential Special Election to Fill McConnell Senate Seat

Sen. Mitch McConnell, R-Ky., and Elaine Chao arrive before the 60th Presidential Inauguration in the Rotunda of the U.S. Capitol in Washington, Monday, Jan. 20, 2025. Julia Demaree Nikhinson/Pool via REUTERS

A Kentucky statute enacted in 2024 requires that a vacancy in the U.S. Senate occurring at least three months before a scheduled election be filled through a special election rather than by gubernatorial appointment. Monday marks the final day for Gov. Andy Beshear to call such an election ahead of the November 3 midterms if he determines that a vacancy exists in the seat held by Sen. Mitch McConnell (R-KY).

The 2024 measure was approved by the Republican-controlled Kentucky General Assembly after it overrode Beshear’s veto. It replaced the prior practice, under which the governor could appoint an interim senator. The statute provides that a vacancy arising less than three months before the election remains unfilled until the regular election date. Kentucky is one of five states that do not authorize the governor to make an interim appointment; the other 45 states permit such appointments pending an election.

McConnell has not appeared in the Senate since mid-June, when he lost consciousness at his residence and was hospitalized. His office has released limited information on his condition. Beshear has requested documentation confirming that McConnell remains able to perform Senate duties. McConnell has stated his intention to retire when his term ends in January 2027. The seat is currently scheduled to be contested in the November election between Democrat Charles Booker and Republican Andy Barr.

Beshear has stated that he views the Monday deadline as the point after which he would lack authority to schedule a special election. In a Bloomberg interview, he noted public discussion of the date and differing assessments of whether a Democrat could prevail in a special election in the state.

The 2024 law is the second recent restriction enacted by the legislature on the governor’s appointment authority. A 2021 statute requires that any successor nominated by the governor come from a list of three candidates submitted by the outgoing senator’s political party. Beshear has maintained that both measures conflict with the Seventeenth Amendment, which addresses temporary filling of Senate vacancies. Because the 2024 law has not previously been applied, its interaction with the constitutional provision and any potential court challenges remain unresolved.

Carol Evans, vice president of policy at Common Cause, stated that the absence of an appointment mechanism leaves Kentucky voters without representation and reflects a pattern in which officeholders view themselves as exempt from ordinary rules. She described the situation as raising questions about whether the office is being used to serve constituents or retained as a personal entitlement.

McConnell’s office and Beshear’s office did not respond to inquiries by the time of publication. The statute’s application in this instance will depend on whether Beshear formally determines that a vacancy has occurred and elects to act before the deadline.