NORMAN – An Enid attorney’s effort to halt the special election to fill outgoing U.S. Senator Jim Inhofe’s seat isn’t as far-fetched as some critics think, a University of Oklahoma law professor said Tuesday.
Some political experts, however, say the case will present a big challenge for its author.
On Monday, Stephen Jones, a prominent Republican attorney from Enid, filed a writ of mandamus with the Oklahoma Supreme Court asking the state’s high court to overturn an executive proclamation by Gov. Kevin Stitt. Stitt’s proclamation called for a special election to fill outgoing U.S. Senator Jim Inhofe’s Senate seat.
In his lawsuit, Jones said the governor doesn’t have the authority to fill Inhofe’s seat until the seat is actually vacant.
“The governor’s proclamation violates the 17th Amendment and Oklahoma law because the governor does not have any authority to order a special election to replace a U.S. Senator until after there is a vacancy in the office,” Jones wrote.
Jones’ filing also asked the court to issue a writ of mandamus and a write of prohibition to the state election board to “prevent the premature and unauthorized election order in the proclamation.”
Joe Thai, a professor of Constitutional Law at the University of Oklahoma Law School said Jones’ filing is likely to get the court’s attention.
“If you look at the text of the 17t Amendment, it talks about vacancies in the present tense,” Thai said. “Jones has an argument there; that the legislature is getting ahead of the ball.”
On Feb. 28, Inhofe had announced his intention to retire from the Senate. He sent a letter to the Oklahoma Secretary of State, which made his resignation effective on Jan. 3, 2023. At that time, Stitt issued an executive proclamation which set a special election for the seat this November – on the same date of the state’s general election.
Thai said Jones’ effort isn’t implausible. Even with an earlier precedent of an anticipatory election – which took place when the-U.S. Senator David Boren resigned his seat to become president of OU and the seat was subsequently filled by Inhofe – that precedent, Thai said, doesn’t always guarantee a similar ruling.
“Precedent is one thing,” he said. “It may make the Oklahoma Supreme Court uncomfortable. But on the other hand, the argument is not implausible. This is not something that Stephen Jones will be laughed out of court for.”
Jones’ petition asks the Oklahoma Supreme Court to rule on the issue because there is insufficient time for the filing of a district court case and any appeal. Jones’ lawsuit said a special election to replace Inhofe couldn’t be held before 2024 because the seat would not be vacant until Jan. 3., 2023.
"The vacancy in Senator Inhofe's office is not scheduled to occur until January 3, 2023, at the earliest. The next regularly scheduled statewide Primary, Runoff Primary and General Election after January 3, 2023, is in 2024."
James Davenport, a political science professor at Rose State College who studies Oklahoma politics, countered, saying the case will present challenges for Jones.
“It’s a strange case,” Davenport said. “But I am curious about this irrevocable resignation. I wonder how many other states have something similar. That seems to be something that was inserted (in the law) anticipating that a candidate might say, ‘I’m not going to resign immediately for several months,’ or in this case almost a year later. I don’t know what legal standing that has.”
Jones’ argument, Davenport said, is built around the idea that an irrevocable resignation does not create a vacancy. “I think everything hinges on that,” he said.
And while Jones has some interesting arguments, Davenport the courts may to defer to the legislature’s process, unless it was blatantly unconstitutional.
“The court would have to find something that would be fairly clear in striking that process (the irrevocable resignation) down,” he said. “Additionally, the court would need to make a decision quickly, they don’t have a whole lot of time.”
Under the 17th Amendment to the U.S. Constitution, state governors are authorized to call special elections to fill vacancies in the U.S. Senate when those vacancies occur. The amendment also allows a state’s chief executive to make temporary appointment to the seat, “until the people fill the vacancies by election as the legislature may direct.” Prior to the adoption of the amendment in 1913, U.S. Senators were elected by state legislators.
With potential candidates for the seat scrambling to secure funding and attention, Thai said Jones’ filing could force the court to stop and closely examine both state law and the U.S. Constitution.
“His filing forces you to read the 17th Amendment,” Thai said. “The text is on his side.”