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A Mark Kelly win in Ariz. Senate race could spoil McConnell's plans to replace Ginsburg

If he's victorious Nov. 3, the Democrat, former astronaut and husband of Gabby Giffords might take office in time for the vote.
Mark Kelly speaks during his senate campaign kickoff event in Tucson, Ariz. on Feb. 23, 2019.
Mark Kelly speaks during his senate campaign kickoff event in Tucson, Ariz. on Feb. 23, 2019.Mike Christy / Arizona Daily Star via AP file

WASHINGTON — Arizona's critical Senate race has suddenly taken on extra weight, because Democrat Mark Kelly could potentially be sworn in early enough to vote on a replacement for the late Supreme Court Justice Ruth Bader Ginsburg if he wins.

Kelly, a former astronaut and the husband of ex-Rep. Gabby Giffords, is favored to prevail over appointed Republican Sen. Martha McSally. And Arizona law indicates he could be sworn in by Nov. 30, during the lame-duck session of Congress when Republicans may try to push through a Ginsburg replacement if they are unable to do so before the election.

That could potentially narrow Senate Republicans' current 53-to-47 majority as they rush to fill the vacancy on the high court before January when a new Congress and possibly new president will be sworn in. Right now, four Senate Republicans would have to defect to block an appointment, but if Kelly is in office, then only three would need to bolt. And all eyes are currently focused on three possible GOP defections — Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah.

Kelly said in a statement Saturday that the Nov. 3 election winners should choose the next justice.

"When it comes to making a lifetime appointment to the Supreme Court, Washington shouldn’t rush that process for political purposes," he said. " ... I believe the people elected to the presidency and Senate in November should fill this vacancy."

Senate Majority Leader Mitch McConnell, R-Ky., has already vowed to move ahead with a vote on President Donald Trump's yet-to-be-named nominee and McSally is on board with the plan.

"This U.S. Senate should vote on President Trump's next nominee for the U.S. Supreme Court," the Republican former fighter pilot said on Twitter Friday. She also praised Ginsburg as someone who "broke barriers for all women."

The Arizona race, while occurring on Election Day Nov. 3, is technically a special election to fill the seat vacated by the late Republican Sen. John McCain. McSally was appointed to fill the seat until the election, and lawyers from both parties told the Arizona Republic the winner of that election could be sworn in early under state law.

In early September, a Superior Court of Arizona judge ruled in a similar case involving a special election to fill the vacancy of a local town council member.

The judge said that while the law did not "entitle the appointee's elected successor to take office on Election Day, the successor is entitled to take office once the election process is concluded (i.e., the results have been canvassed and certified) and his or her election becomes official."

Pointing to that case, Tim LaSota, a former general counsel for the Arizona Republican Party, said that he believes Kelly should be seated as the state's senator once the election results are officially canvassed.

"I think the law is clear that under such circumstances you don't have to wait for the regular term to end. So I do think Mr. Kelly — if he does win and the canvass is in — he’d take office early," LaSota said. "As the former general counsel of the Arizona Republican Party, I'm obviously not biased in favor of Mark Kelly and will vote for Martha McSally — the law is the law."

It's unclear, however, if McConnell or Arizona GOP Gov. Doug Ducey could delay Kelly's induction to the Senate.

"Justice Ginsburg dedicated her life to making our country more just," Kelly said on Twitter. "She fought cancer with the same ferocity she fought for civil rights and left a legacy that impacted women's rights and equal protection under the law — she will continue to be a role model for so many."

Kelly has outraised McSally $46 million to $30 million and both campaigns are now likely to be inundated with a flood of money.

Progressives exhorted their followers on Twitter to open their wallets for Kelly and give as much as possible, while liberal and conservative groups have already started running ads to try to influence the outcome in Arizona and other critical Senate races.

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A recent New York Times/Sienna College poll showed Kelly leading 50-42 percent, while a Monmouth University poll showed a narrower lead for Kelly of 50-46 percent among likely voters.

"This race was already as high-stakes as it could possibly get," said Andy Barr, a Democratic strategist with the firm Saguaro Strategies, which works in Arizona. "It was already going to potentially determine the majority of the Senate. It was already going to potentially determine the success or failure of the next Supreme Court nominee. And Joe Biden needs Mark Kelly to do well to help him win the state."

Both presidential campaigns are competing vigorously for Arizona — Vice President Mike Pence visited the state Friday — and Barr said the airwaves are already approaching saturation with political ads.

"It might be that it's just not even possible to buy a television ad in Arizona in October," he said.

Alex Seitz-Wald reported from Washington and Vaughn Hillyard from Phoenix.