McConnell health update demanded by Gov. Beshear as Senate vacancy questions grow

Kentucky Gov. Andy Beshear on Wednesday asked the office of Sen. Mitch McConnell's, R-Ky., to provide an update on the senator's health, escalating public pressure for more information as the 84-year-old remains hospitalized more than three weeks after being admitted.

"Over the last several weeks, Kentuckians have grown increasingly concerned about the health and well-being of Sen. McConnell," Beshear, a Democrat, said in a statement. "As Governor — and a fellow public official who understands the commitment we've made to the people we serve — I am requesting the Senator provide an update on his current health status."

The governor made his request two years after the Kentucky legislature overrode Beshear's veto to pass a law that bars Kentucky governors from appointing a temporary senator and instead requires a special election. The process has never been tested.

If McConnell, considered a master of legislative rules, were to resign, die or be expelled before then, Kentucky's vacancy process would begin.

Republicans hold a narrow, 53 to 47, Senate majority and the absence of a voting member, or even the remote chance of a Democrat filling the post temporarily, could change the power dynamics in Washington. The Senate is due to consider a boost in defense spending that President Donald Trump has requested, and McConnell is the chair of the subcommittee on defense appropriations.

"The Senate is so evenly divided right now that every Senate seat counts," Stephen Voss, a University of Kentucky political science professor, told CNBC. "Losing a Republican vote, even for a few weeks" he added, would be "an inconvenience with likely policy consequences."

McConnell's office did not immediately respond to a request for comment about his health on Wednesday. His office has said the senator is recovering in a hospital.

Kentucky Republicans rewrote the state's U.S. Senate vacancy law in 2024, stripping the governor of the power to appoint a temporary senator and requiring a special election instead.

Under the law, the governor would issue a proclamation calling for a special election. The winner would serve the remainder of McConnell's unexpired term until January. Until a winner is certified, the seat would remain empty.

The timing is not automatic. Kentucky law does not appear to set a firm deadline for the governor to issue the proclamation, legal experts said.

Once the proclamation is issued, the election clock starts: It must be sent to county sheriffs at least 63 days before the election, and candidates must file at least 56 days before Election Day.

If a vacancy occurred July 8 and Beshear immediately sent the proclamation to county sheriffs, the earliest special election outside the regular November election — assuming it were held on a Tuesday, as Kentucky law generally requires for special elections — would appear to be Sept. 15. Candidate filings for such a race would be due July 21.

Because of the compressed timeline, Kentucky's political parties would choose their nominees for the special election.

For the general election, Republican Rep. Andy Barr is facing off against Democrat Charles Booker, but it is not guaranteed that party officials would select the same candidates for a special election. The Cook Political Report with Amy Walter rates the race as "solid" for Republicans.

The calendar gets more complicated closer to November.

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

To hold both elections that day, Beshear's proclamation would have to reach county sheriffs by Sept. 1, and special election candidates would have to file by Sept. 8.

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

"Special elections are highly unpredictable, with low turnout that can produce outcomes at odds with the overall orientation of the state's electorate," Voss said. "Candidates with a small but highly committed base tend to do well."

That makes the process awkward for Kentucky Republicans, who designed the law to keep a Democratic governor from filling a Senate seat by appointment.

"There's just no upside in it for the state GOP to want to hold a special election, although they may be legally compelled to do so," Voss said.

The vacancy law could also face a court challenge.

Legal experts say the central question is whether Kentucky lawmakers can fully remove the governor's appointment role, given language in Kentucky's Constitution dealing with vacancies in statewide offices and the U.S. Constitution's 17th Amendment's rules for filling U.S. Senate seats.

"It's actually pretty complicated, and I think there's a decent chance the issue could end up in the courts," Josh Douglas, an election law expert and associate dean at the University of Kentucky Rosenberg College of Law, told CNBC.

The 17th Amendment says state legislatures may allow governors to make temporary Senate appointments until voters fill a vacancy by election, the opposite of the new law from Kentucky's Republican-led legislature.

The Kentucky Constitution says vacancies in offices for the state at large, or districts larger than a county, "shall be filled by appointment of the Governor." Legal experts say that could give Beshear, or another party, an argument that the 2024 law conflicts with the state constitution.

"The Governor may simply deem the statute a violation of his powers and then disregard it," Josh Blackman, a professor at the South Texas College of Law in Houston who has written about Kentucky's vacancy laws, told CNBC. "Ultimately, the courts will be dragged into the process and I don't know that they'll intervene."

A court could uphold the special election law. It could allow Beshear to appoint a temporary senator. Or litigation could stretch on while Kentucky's second Senate seat remains vacant.

"There are lots of players who have incentives to drag it out," Voss said.

McConnell, a former longtime Senate majority leader, declined to seek an eighth term following a series of health scares. McConnell was admitted to a hospital on June 14, according to his office, which has released few details about his condition or the circumstances surrounding his hospitalization.

If McConnell's seat were to remain vacant, Kentucky would be represented by only one senator, Rand Paul.

Asked by CNBC on Tuesday for the latest update, McConnell's office pointed to a brief statement it issued last week saying the senator "appreciates the outpouring of support he's receiving while he continues his recovery in the hospital."

"The Senator continues to improve, and is working closely with his staff on Kentucky and Senate matters while the Senate is out of session," the statement said.