An internal fight between Oklahoma’s appointed senator and likely successor is boiling over as both Republicans vie to fill the last two months of former Sen. Marwayne Mullin’s term.
The dispute is over when Sen. Alan Armstrong’s temporary term ends and the next Oklahoma senator — likely Rep. Kevin Hern — would be sworn in.
Hern wants to be sworn into the Senate in November following the election, while Armstrong wants to stay on through January.
According to Oklahoma law, “The candidate elected to the office at the regularly scheduled election shall be deemed to also have been elected to fill the vacancy and shall be eligible to assume the office upon the official certification of the election by the State Election Board.”
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Another section of the law reads, “When a vacancy occurs in the office of a member of the United States Senate from Oklahoma, the Governor shall, within thirty (30) days of occurrence of the vacancy: Appoint a person eligible to hold such office, who has been a registered voter of the party of the predecessor in Oklahoma for at least five (5) years preceding the date that the vacancy was created, to serve in such office until a successor is elected.”
According to multiple sources familiar with the matter, Hern’s team believes the law would allow Hern — if he wins the election — to be sworn into the Senate in November, as Oklahoma must certify the election within seven days of it being completed. However, Armstrong’s team believes the law is less clear and that he was appointed to serve out the remainder of now Secretary of Homeland Security Mullin’s term, which ends in early January.
Armstrong wants to stay on at least until legislation on permitting reform gets done, sources tell The Washington Sun. There’s a chance that happens in the lame-duck session.
All this has caused a rift between the two members, sources say.
Hern has hired prominent Oklahoma attorney Glenn Coffee to help with any challenge to him taking office in November, sources tell The Sun, while Armstrong has Oklahoma Gov. Kevin Stitt on his side pushing for him to remain in office until January.
On Sept.11, an attorney representing Armstrong sent a letter, which The Sun obtained, to Stitt asking that he request the attorney general’s opinion on the matter.
In the letter, the lawyer says, “The upcoming Senate election is not intended to determine who will succeed to the few remaining weeks” of the term.
Armstrong’s attorney said that “Senator Armstrong seeks an opinion addressing whether his appointment continues until the 120th Congress convenes on January 3, 2027, or terminates immediately upon certification and qualification of a new Senator elected at the upcoming election.”
Multiple sources told The Sun that Stitt has not yet requested the attorney general’s opinion on the matter.
However on Tuesday, State Senate Pro Tempore Lonnie Paxton requested an opinion from state Attorney General Gentner Drummond on when the next senator would get sworn in.
“I write to request the Attorney General’s formal opinion on three questions concerning the proper application of that statutory scheme to a vacancy currently pending in Oklahoma’s United States Senate delegation,” reads a copy of the request obtained by The Sun. “Questions have been raised regarding whether 51 O.S. § 15, a general statute addressed to appointed officers generally, may extend an appointee’s tenure beyond the point a successor is elected under § 10(C), and regarding the scope of the Governor’s duties once that election has occurred and been certified. Because this question bears directly on the orderly administration of a pending statutory succession, and because I am aware of no prior formal opinion addressing it, I believe the Attorney General’s guidance would serve the public interest and would assist the Legislature in evaluating whether any further clarifying legislation is warranted.”
The request has three questions they want the Attorney General to answer:
“Does 51 O.S. § 15’s provision that ‘every appointed officer shall hold his office until the end of the term for which the officer whom he succeeds was elected or appointed, and until his successor is elected and qualified’ extend the tenure of a Governor-appointed United States Senator beyond the point a successor is elected, where 51 O.S. § 10(C) separately provides that such an appointee serves only ‘until a successor is elected’”
“Does 26 O.S. § 12-101(C)(3)'s provision that a candidate ‘shall be deemed to also have been elected to fill the vacancy and shall be eligible to assume the office upon the official certification of the election by the State Election Board’ require any additional act, beyond that certification, before the winning candidate is entitled to assume the office?”
“Does the Governor retain any discretion under Oklahoma or federal law to decline or delay performing that certification once the State Election Board has certified the results of the election?”
How Drummond would opine on this case is unknown. But both sides are hopeful that he will rule in their favor and believe the law is on their side.
In a statement, Miranda Dabney, a spokesperson for Armstrong, said that “Senator Armstrong was proud to be appointed by Governor Stitt to fill the vacancy for the remainder of the 119th Congress. We have reviewed state law and sought legal guidance. There is no vacancy to be filled. We remain committed to advancing permitting reform. Should Rep. Hern prevail in the election, we look forward to him being seated in the 120th Congress, along with his colleagues.”
A spokesperson for Hern said that “Congressman Hern is focused on winning in November.”
“From day one, he has followed the process articulated by Oklahoma law which clearly provides that a temporary appointment in the U.S Senate only lasts until the vacancy is ‘filled by election as provided by law.’ Any intentional delay in that process would subvert the will of the voters and Oklahoma law. We believe that any independent legal opinion or judicial review would confirm that the law is clear,” the spokesperson for Hern said in the statement.
The quote the spokesperson references is a portion of Stitt’s official appointment of Armstrong where he appoints “Alan Armstrong, a Senator from said State to represent said State in the Senate of the United States until the vacancy therein caused by the resignation of Markwayne Mullin, is filled by election as provided by law.”
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