Republican Sen. Mitch McConnell’s extended hospital stay has sparked more than conspiracy theories and proof-of-life memes. It’s raised a question Kentucky politicians and officials are grappling with: If a vacancy were to occur, who decides who will represent Kentucky in the U.S. Senate?

McConnell, 84, has not made a public appearance since being hospitalized on June 14 following what he described in a statement as a fall that left him “briefly unconscious.” “My doctors have confirmed that I didn’t break any bones or suffer a concussion. I didn’t have a heart attack or a stroke. I don’t have any tumors or hemorrhages,” he said. His office published additional statements in late July saying he is still having “intense physical therapy.”

While his office has issued assurances that McConnell is stable and pushing through a rigorous regimen of physical therapy, two recently released bedside photos with his wife Elaine Chao have been mocked for their “staged” vibes, fueling speculation ranging from claims that the senator is on life support to suggestions that he is purposely convalescing to avoid dealing with the SAVE Act. For some, his absence at Fancy Farm was the last straw, and Kentucky Gov. Andy Beshear has been leading the charge among Democrats to call for the senator’s resignation. Were he to do so, what follows isn’t straightforward.

“It’s actually pretty complicated,” Joshua A. Douglas, a professor and associate dean for research at the University of Kentucky Rosenberg College of Law, told Queer Kentucky. “And I think there’s a decent chance the issue could end up in the courts.”

To be clear, McConnell may be absent from the Senate floor, but he still has the seat — though senators are not permitted to vote when absent. McConnell has missed 46 votes since being hospitalized, and the empty chair has generated interest in an unresolved constitutional question involving Kentucky law and competing U.S. constitutional provisions.

Wielding a vote, a senator can affect federal legislation like the Equality Act, approve funding for programs including HIV prevention and treatment, and influence judicial confirmations that could be highly consequential for LGBTQ+ rights, such as marriage equality and trans protections.

In Kentucky, competing state laws are creating uncertainty about how a vacancy would be filled, should one arise — typically, this would happen as a result of death, resignation or expulsion from the Senate.

“Before 2024, Kentucky law allowed the governor to appoint a successor if there is a vacancy from a list of three people provided by the outgoing senator’s party,” explained Douglas. “But the legislature passed a new law in 2024, House Bill 622, that takes away the governor’s authority to fill a vacancy.”

That bill had been introduced in the wake of McConnell’s February 28, 2024, announcement that he would step down as Senate Republican leader, while serving the remainder of his term. While the bill was winding its way through Kentucky’s General Assembly, Beshear, a Democrat, vetoed it, but Kentucky’s GOP-controlled House and Senate overrode the veto.

“So, if there is a vacancy, the governor would call a special election,” said Douglas.

But it’s tricky.

“The Kentucky Constitution Section 152 seems to contradict this,” Douglas told Queer Kentucky, quoting the provision’s language: “Vacancies in all offices for the state at large, or for districts larger than a county, shall be filled by appointment of the governor.”

And it gets more complicated when the 17th Amendment to the U.S. Constitution is taken into account. It establishes a federal framework, but how that framework interacts with Kentucky’s constitution and current statute is where things get murky.

The amendment permits a governor to make a temporary appointment until the vacancy is filled by election, if state law allows such appointments. Most states permit a governor to make a temporary appointment as per the 17th Amendment, and Kentucky law allowed this for about 80 years, until 2021, when McConnell and fellow Republicans backed a bill that was passed by the Republican-controlled legislature, which restricted how Beshear might fill a vacancy.

Per Kentucky’s current statute (HB 622), that would involve a special election. The person would only serve for the remainder of the current term, said Douglas. There would still be a regular election for the term that starts January 3, 2027, when the next U.S. Congress begins.

“Hence the contradiction,” he said, “The 17th Amendment says the legislature may authorize the governor to appoint a temporary replacement, the Kentucky Constitution says the governor appoints one, and the Kentucky legislature now says there must be a special election after the new law.”

Timing adds another layer of uncertainty.

While the current law says that there is a 63-day deadline for notice and a 56-day deadline for filing, Douglas said he doesn’t see a deadline requirement for the governor to call the special election.

“I don’t see anything in the law providing a deadline for when the Governor must call the special election. But the 63-day notice and 56-day deadline for filing certainly impacts this all.”

Considering that November 3 is the scheduled general election day to determine who will replace McConnell at the end of his term, Beshear would have to issue a “proclamation” that sheriffs receive by September 1. County sheriffs are responsible for giving public notice of elections. So Candidates would need to file by September 8 if the special election were to be held by November 3.

If those deadlines are not met, it’s unclear when the special election would be held to fill the remainder of McConnell’s term, should the seat become vacant. That raises the question as to whether the special election could be held on or after the scheduled general election on November 3 to determine who serves the new six-year Senate term starting January 2027.

All things considered, given the latest change in current law enacted by Republican legislators in 2024 (HB 622), the most likely outcome would be a special election with a good chance the matter gets taken up by the Kentucky court system – potentially working its way from Circuit Court to Kentucky Court of Appeals to the Supreme Court of Kentucky – to address the question as to whether the governor has the constitutional authority or obligation to make a temporary appointment.

As for working its way up to SCOTUS? It probably won’t reach the U.S. Supreme Court, because it’s really a matter of Kentucky constitutional law, and also, the 17th Amendment permits a state legislature (governor) to make a temporary appointment – but doesn’t require it.

With Republicans holding a narrow majority of 53-47, even a temporary vacancy – or a Democrat appointee – could affect legislation and political dynamics for the whole country. While Republican U.S. Rep. Andy Barr and Democrat Charles Booker are on course to challenge each other in the general election for McConnell’s seat, it’s not a given that they would be selected to face off against each other in a special election. That uncertainty of timing, authority, and eventually who is on the ballot is probably going to remain unresolved until McConnell’s seat becomes vacant or his term simply ends.

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