Update on McConnell’s health raises questions about Beshear Senate vacancy

Kentucky Gov. Andy Beshear on Wednesday asked Kentucky Republican Sen. Mitch McConnell’s office to provide an update on the senator’s health, adding to public pressure for more information after the 84-year-old senator remains hospitalized for more than three weeks.

“In recent weeks, Kentuckians have become increasingly concerned about Sen. McConnell’s health and well-being,” Beshear, a Democrat, said in a statement. “As governor, and as a fellow public servant who understands our commitment to the people we serve, I am asking the senators to update us on the current health situation.”

The governor’s request comes two years after the Kentucky General Assembly overrode Beshear’s veto and passed a bill that would prohibit Kentucky’s governor from appointing at-large senators and instead require a special election. This process has never been tested.

If McConnell, considered the master of legislative rules, resigns, dies or is ousted before then, Kentucky’s vacancy process will begin.

Republicans hold a narrow 53-47 majority in the Senate, and the power dynamics in Washington could shift even if a voting member is absent or it is extremely unlikely that a Democrat will temporarily hold the position. The Senate will consider increasing defense spending requested by President Donald Trump, and McConnell chairs the defense spending subcommittee.

“The Senate is pretty evenly divided right now, and every seat in the Senate matters,” Stephen Vos, a political science professor at the University of Kentucky, told CNBC. He added: “Losing Republican votes, even for a few weeks, is a bad thing because it could affect policy.”

Mr. McConnell’s office did not immediately respond to a request for comment about his health Wednesday. His office said the senator was recovering in a hospital.

Kentucky Republicans rewrote the state’s Senate vacancy law in 2024 to strip the governor of the power to appoint an interim senator and instead require a special election.

According to the law, the governor would issue a proclamation calling for a special election. The winner will serve out the remainder of McConnell’s unexpired term until January. Seats will remain vacant until a winner is certified.

Timing is not automatic. Legal experts say Kentucky law does not appear to provide a clear deadline for the governor to issue a proclamation.

Once the proclamation is issued, election recording begins. The proclamation must be sent to the county sheriff at least 63 days before the election and submitted by candidates at least 56 days before the election.

If the vacancy occurs on July 8 and Beshear immediately sends a proclamation to the county sheriff, the earliest special election outside of the November regular election — assuming it is held on a Tuesday, as Kentucky law normally requires for special elections — would likely be Sept. 15. The filing of candidates for such elections would be July 21st.

Due to the compressed schedule, Kentucky political parties will choose candidates for special elections.

Republican Rep. Andy Barr will face Democratic Rep. Charles Booker in the general election, but there is no guarantee that party leaders will choose the same candidate in the special election. The Cook Political Report by Amy Walter calls the race “solid” for Republicans.

The calendar gets more complicated as we approach November.

Sept. 1 is the effective deadline for a special election on Nov. 3, the same day Kentucky voters are already scheduled to choose McConnell’s successor for the next six-year term.

For both elections to be held on the same day, Beshear’s declaration would need to be delivered to the county sheriff by September 1st, and special election candidates would have to file by September 8th.

Vos said a special election could be risky even for the Republicans who created the process.

“Special elections are highly unpredictable, and low turnout can produce results that are inconsistent with the overall direction of the state’s voters,” Vos said. “Candidates with a smaller but more committed base tend to do better.”

That makes the process thorny for Kentucky Republicans, who have enacted a law that prohibits Democratic governors from holding Senate seats by appointment.

“There is no upside to the state Republican Party wanting to hold a special election, although it may be legally mandated,” Vos said.

Vacancy laws may also be challenged in court.

Legal experts say the central question is whether the Kentucky General Assembly can completely eliminate the governor’s appointive role, given the Kentucky Constitution’s language regarding statewide vacancies and the 17th Amendment’s rules for filling U.S. Senate seats.

“It’s actually quite complex, and I think there’s a good chance this issue will end up in court,” Josh Douglas, an election law expert and associate dean at the University of Kentucky’s Rosenberg School of Law, told CNBC.

The 17th Amendment allows the state Legislature to authorize the governor to make temporary Senate appointments until voters elect them to fill the vacancies, contrary to a new law by the Republican-led Kentucky General Assembly.

The Kentucky Constitution provides that vacancies in statewide or district offices larger than a county “shall be filled by appointment by the Governor.” Legal experts say this could open up Beshear and other political parties to argue that the 2024 law conflicts with the state constitution.

“The governor may simply ignore this ordinance as a violation of his authority,” Josh Blackman, a professor at South Texas College of Law in Houston who has written about Kentucky’s vacancy law, told CNBC. “Eventually the courts will be involved in this process, but I don’t know if they will intervene.”

The court could uphold the special election law. This could allow Beshear to appoint an interim senator. Alternatively, litigation could continue with Kentucky’s second Senate seat vacant.

“There are a lot of players who have lingering motivation,” Voss said.

McConnell, the former longtime Senate majority leader, declined to seek an eighth term after a series of health scares. McConnell was hospitalized on June 14, according to his office, but has provided few details about his condition or the circumstances of his hospitalization.

If McConnell’s seat remains vacant, Kentucky will be represented by only one senator, Rand Paul.

Asked for an update by CNBC on Tuesday, McConnell’s office pointed to a short statement the senator released last week saying he was “grateful for the tremendous support he is receiving as he continues his recovery in the hospital.”

“The senator continues to improve and is working closely with his staff on Kentucky and Senate issues while the Senate is out of session,” the statement said.