Oklahoma’s Republican Senate nominee says the November winner should take office after the election is certified. Appointed Sen. Alan Armstrong contends his service continues through the current Congress.
OKLAHOMA CITY — U.S. Rep. Kevin Hern pushed back Wednesday against reported efforts to keep appointed U.S. Sen. Alan Armstrong in office until January, saying Oklahoma law allows the winner of the November election to take the seat after the results are certified.
“Oklahoma voters, and Oklahoma voters alone, should decide who represents them in the U.S. Senate,” Hern’s campaign said in a statement.
The statement followed a Washington Sun report describing a dispute over who should serve during the final weeks of the term vacated when Markwayne Mullin became U.S. secretary of homeland security.
Armstrong, a Republican appointed by Gov. Kevin Stitt in March, maintains that his appointment continues until the 120th Congress convenes Jan. 3. Hern argues that whoever wins Nov. 3 is entitled to assume the office after the State Election Board certifies the results.
The timing could have practical consequences beyond who represents Oklahoma during the final weeks of the year. Pat McFerron, president of Cole Hargrave Snodgrass & Associates and a longtime Republican pollster, said in a comment on a KOTV News On 6 Facebook post that Oklahoma should have the new senator sworn in as early as possible.
“Seniority, even a few weeks, can make a big difference on things like committee assignments,” McFerron wrote.
Senate seniority is based on length of service and can provide preferential treatment in matters including committee assignments. Swearing in the winner before the new Congress convenes could place Oklahoma’s new senator ahead of members of the incoming class who take office Jan. 3.
The Sun, citing unnamed sources, reported that Stitt supports Armstrong remaining in office through January.
Oklahoma Senate President Pro Tempore Lonnie Paxton, R-Tuttle, has asked Attorney General Gentner Drummond for a formal opinion addressing when Armstrong’s appointment ends and what must happen after the election is certified.
“Any effort to delay the swearing-in of the newly elected senator would disregard the will of the voters, undermine the process established by Oklahoma law and the U.S. Constitution, and deny Oklahomans the representation that they voted for at a critical moment in our nation’s history,” Hern’s campaign said.
Hern faces Democrat N’Kiyla Jasmine Thomas, Libertarian Sevier White and independents Ron Meinhardt and Curtis Stinnett in the general election.
Competing readings of state law
The dispute centers on how several provisions of Oklahoma law apply to the appointment.
One state statute says a governor-appointed U.S. senator serves “until a successor is elected.”
A separate election statute says the candidate elected to the full term also is considered elected to fill the existing vacancy and “shall be eligible to assume the office” upon official certification.
Hern’s campaign also pointed to Stitt’s appointment certificate, which said Armstrong would serve until the vacancy “is filled by election as provided by law.”
Armstrong’s position relies in part on another state statute providing that an appointed officer holds office until the end of the predecessor’s term and until a successor is “elected and qualified.”
A spokesperson for Armstrong told The Sun that he was appointed to serve through the remainder of the 119th Congress and that his office had reviewed state law and sought legal guidance.
The Sun also reported, citing unnamed sources, that Hern has retained former Senate President Pro Tempore Glenn Coffee to assist with any legal challenge.
Attorney general asked to weigh in
Paxton was the Senate author of the 2021 legislation establishing the current process for temporarily filling a U.S. Senate vacancy.
In his request, Paxton wrote that the law was intended to establish the governor’s authority and obligation to appoint a temporary successor and the process by which that appointment ends after a successor is elected.
Paxton asked whether the general law allowing an appointed officer to remain until a successor is “elected and qualified” extends Armstrong’s service beyond the election despite the more specific Senate vacancy law stating that an appointee serves only “until a successor is elected.”
He also asked whether State Election Board certification alone entitles the winner to assume office or whether some additional action is required.
The third question addresses the governor’s role. Paxton asked whether Stitt has any discretion under state or federal law to decline or delay certifying the winner to the U.S. Senate after the State Election Board certifies the results.
Paxton wrote that he was unaware of any previous formal opinion addressing the questions and said Drummond’s guidance could help the Legislature determine whether clarifying legislation is needed.
Drummond has not issued an opinion. The attorney general’s office says public officials generally must follow formal attorney general opinions unless a court sets them aside.
Armstrong is not a candidate in November. State law required him to pledge that he would not run for the seat in the election following his appointment.
