Inside the hidden legal battle over Mitch McConnell’s senate seat
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Sen. Mitch McConnell in Washington, D.C., June 11, 2025. (Defense Department photo by U.S. Navy Petty Officer 1st Class Alexander Kubitza/Flickr)
A lot of people are asking Kentucky Gov. Andy Beshear to “do something” about U.S. Sen. Mitch McConnell’s absence from the Senate.
Former Illinois Republican congressman turned political commentator Adam Kinzinger said on Threads Tuesday: “I think the Governor of Kentucky has every right and responsibility to either see Mitch or declare the seat vacant.”
Three hours later, the post had more than 7,000 likes.
Another Threads account, jessdiaryofamom, tagged Beshear directly Monday evening, telling him “for the love of all things holy, GO TO THE HOSPITAL and find out whether or not Mitch McConnell is able to fulfill his role as an elected official for your state.”
“Do something. Anything. Please,” the post said.
With the longtime Republican senator’s absence from the Senate passing the one-month mark, the online pressure on Beshear seems to be growing. Similar posts can be found on X and Bluesky. Podcasters are also talking about what Beshear should do.
McConnell was hospitalized on June 14, and speculation about his condition has run rampant. Beshear sent McConnell’s office a letter requesting an update on his health and well-being earlier this month.
On July 12, McConnell’s office shared a statement and photo of the senator, which said he had moved from being a hospital patient to “a rehabilitation center where I’ll keep regaining my strength.” A spokesperson for McConnell told the Lantern Tuesday that McConnell’s “continues to improve and we will be sure to keep you updated” before referring to the July 12 statement.
“The governor has not received any communication whatsoever,” said Scottie Ellis, Beshear spokesperson, Tuesday afternoon.
The calls for Beshear to take action raise questions about how he would be perceived by Democratic voters nationally if he were to announce a run for president in 2028.
Stephen Voss, a professor of political science at the University of Kentucky, said that the pressure puts the governor in a “tough position.”
Beshear has become the Democratic face of criticism of the senator and has been able “make a lot of noise about McConnell’s staff keeping him under wraps and lack of transparency,” Voss said.
Beshear said in an interview with journalist Katie Couric last week that he had gotten calls from unnamed agencies “suggesting that (McConnell) passed.”
Beshear’s frequent messaging about unity “is a good one for Democrats because they need to figure out how to get out of the wilderness and get back into power” and it could pull in swing voters.
But some Democratic primary voters across the country could have concerns that Beshear “wouldn’t be enough of a fighter because … a lot of the voters want someone who’ll take a battle to the Trump forces,” Voss said.
But it’s definitely not so simple for Beshear to “do something,” thanks to political and legal realities in Kentucky.
“People who watch Kentucky politics closely understand that the chance Beshear could find a way to get a Democrat into that Senate seat is very low,” Voss said. “Beshear’s biggest problem with these Democratic voters and how he’s handling the situation is their ignorance.”
To begin with, legal experts say, Beshear has no authority to take any action on McConnell’s seat until the senator has resigned or died.
Most states allow governors to fill vacant U.S. Senate seats until the next election. But in 2024, Kentucky’s GOP-controlled General Assembly passed a law that requires the governor to call a special election to fill a vacant U.S. Senate seat and allow the winner to serve until the end of the unexpired term.
Some people have speculated that Beshear could challenge the new law by naming a successor, then waiting for a court challenge, where a judge might agree with Beshear that the General Assembly was violating the separation of powers.
“If Beshear is able to wait it out a little bit longer, then ultimately he can take credit for maybe trying to get around that law, turning the battle over McConnell’s replacement into a legal battle that that maintains that empty Republican seat, and Democrats will realize, ‘Well, the Republicans were down one Senate seat all this time because of how Beshear played that,’” Voss said.
Al Cross, a longtime Kentucky political journalist and columnist, said McConnell is a “national Democratic bogeyman,” and the pressure on Beshear may have been different if it were another political figure in that seat.
“I do think that if it had been Rand Paul, for example, we wouldn’t have seen the kind of pressure that we see now. I do think you would have seen it, though,” Cross said. “I think it’s a natural question for people to ask. Unfortunately, I think a lot of people have been taken down the rabbit hole by conspiracy theories and speculation and outright misinformation.”
Once McConnell “gets back into action,” Cross said, “this will be largely forgotten.
“This is mainly a parlor game being played out in public by a lot of misinformed people who have animus against Mitch McConnell or Andy Beshear or both, and it gets a lot more attention than it deserves,” Cross said. “That said, we’d be a lot better off if Mitch McConnell would put out a 30-second video.”
What can the governor do legally?
Beshear recently indicated that he would be prepared for a legal challenge if the seat were to become vacant. In an MSNOW interview, he pointed to the 2024 state law change, as well as a 2021 change that would have required the governor to choose U.S. Senate appointees from the same political party as the person vacating the seat based on three recommendations from the party’s executive committee.
“If we end up there — and I hope we don’t — there’s at least going to be probably a disagreement,” Beshear said.
Beshear has argued that the law violates the Kentucky Constitution, which says governors fill vacancies “in all offices for the State at large” by appointment.
Yet, two legal experts the Lantern spoke to said the matter would likely end up in federal court, should Kentucky ever get to that point.
“I think any challenge would be filed in federal court rather than state court, because the issue is whether the United States Constitution controls rather than the state constitution,” said Sheryl Snyder, a state constitutional lawyer who has previously represented governors of both political parties.
Snyder pointed to the 17th Amendment to the U.S. Constitution, which says state legislatures “may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” Plus, the U.S. Constitution says the U.S. House and U.S. Senate judge the qualifications of their members.
“So the additional issue would be if the governor made an appointment that was questioned, the Senate might well say, ‘Your appointee is not qualified. We’re not going to seat him or her,’ which would spawn yet different litigation,” Snyder said.
Denis Fleming, who has served as legal counsel in multiple Kentucky Democratic governor administrations, agreed with Snyder. He said Beshear has “little, if any, authority at this point” to declare McConnell’s seat vacant. Questions do remain, however, on how the Kentucky and U.S. Constitutions would dictate filling a vacant Senate seat.
“I think that’s far from settled,” Fleming said.
Fleming referred to a recent Kentucky State Supreme Court ruling that sided with Beshear’s power to appoint members of the Kentucky State Fair Board. Fleming said the court had been “very careful” in reviewing the state constitution’s separation of powers sections, but that was reviewing power over state appointments, not federal offices.
“The governor, from my perspective, is being, I think, properly cautious,” Fleming said. Republicans have control of the U.S. Senate, plus Kentucky voters will decide a general election in November.
McConnell previously said he would not seek reelection. Republican U.S. Rep. Andy Barr and former Democratic state Rep. Charles Booker will face off in November.