Written by Dustin R. Isaacs, communications professional and founder and president of Atlas & Ink Communications.
It’s fascinating to watch Gov. Andy Beshear work his way into any and every national headline.
His latest effort involves the entirely hypothetical possibility of a vacancy in the U.S. Senate. Beshear has repeatedly suggested there is a “possibly contested question” about how Kentucky would fill it.
The governor floated his theory during an interview with Al Sharpton on MS NOW. He raised it again with Katie Couric, saying “a lot of options are on the table.”
I have bad news for him. There aren’t.
The Seventeenth Amendment of the U.S. Constitution says that when a Senate vacancy occurs, the state’s executive authority “shall issue writs of election” to fill it.
It provides one exception: “The legislature of any State may empower the executive thereof to make temporary appointments.”
The amendment gives the legislature a choice, and that is no historical coincidence.
Under the Constitution’s original design, state legislatures selected United States senators themselves. They continued doing so until the Seventeenth Amendment established popular election in 1913.
The amendment transferred the ultimate choice of senator to the people, but it preserved a specific role for legislatures when vacancies occur. The legislature may authorize a temporary appointment or withhold that authority entirely and require an election.
Beshear has as much legal authority to appoint a replacement U.S. senator for Kentucky as he does to name the Washington Commanders’ next general manager.
Kentucky’s General Assembly made its choice in 2024 with House Bill 622, which repealed the governor’s statutory appointment authority and required a special election to fill a U.S. Senate vacancy.
Beshear vetoed it. The legislature overrode him. It’s the law.
Under KRS 118.720, the governor must sign a proclamation calling the election if a vacancy occurs. Kentucky uses that proclamation “in lieu of a writ of election.” A writ or proclamation is the formal order that calls the special election.
Different label, same constitutional function: let Kentuckians choose their senator.
Beshear does not like that answer, and given his ambitions, he needs to flirt with the idea that reality is somehow negotiable. Thus, he points to Section 152 of the Kentucky Constitution to give a manufactured legal theory a veneer of rationality.
Section 152 addresses vacancies in elective offices. Beshear’s theory is that its reference to offices “for the State at large, or for districts larger than a county” extends beyond Kentucky government and gives him the power to appoint a United States senator.
Even Mr. Fantastic would be envious of that stretch.
The coherent reading is straightforward: Section 152 governs state offices, not federal ones. Kentucky courts have said so for more than a century. In Brumleve v. Ruth, Kentucky’s highest court at the time expressly rejected the argument that members of Congress are state officers under the Constitution of Kentucky, citing a consistent line of decisions dating to 1899. In Peers v. Davis, the Kentucky Supreme Court later affirmed a judgment resting partly on the same conclusion: A U.S. senator is not a state officer under Section 152.
Let’s ignore all this evidence and follow the governor’s legal fiction to its logical conclusion to see just how far out on a limb he is willing to go.
Most of Kentucky’s U.S. House members also represent districts spanning multiple counties. If Section 152 gives the governor appointment power over one federal office, why would it not give him the same authority over another?
The answer is that Article I, Section 2 of the U.S. Constitution expressly requires House vacancies to be filled by election. A governor cannot appoint a member of the U.S. House.
Beshear’s interpretation therefore requires Section 152 to include federal offices when he wants to appoint a senator, but seemingly excludes them when the same reasoning would let him appoint a House member.
He has not carried his argument that far.
Why?
Because the contradiction would be obvious. It would be laughed out of court.
The problem is that his Senate theory rests on the same faulty premise. The U.S. Constitution is clear about both House and Senate vacancies. The only distinction is that the Seventeenth Amendment allows a state legislature to grant its governor temporary appointment authority. Kentucky’s General Assembly has chosen not to do so.
The Supremacy Clause eliminates any remaining confusion. Kentucky’s Constitution cannot override the federal Constitution, even if someone insists on the legally incoherent claim that Section 152 governs federal as well as Kentucky offices.
This should all be especially easy to understand for a lawyer who served as Kentucky’s attorney general and now wants the nation to consider him presidential material.
Beshear may dislike the law. He may petulantly repeat this flimsy theory into every available television camera and webcam. What he may not do is present political fiction as a legitimate legal theory or unresolved constitutional question.
Either our governor is unable to understand remarkably straightforward language in the U.S. Constitution and Kentucky law or, far more likely, he’s so desperate for national attention that he’s willing to deliberately confuse the public and embarrass himself and Kentucky in the process.
Neither possibility belongs on a presidential résumé.
