The GOP supermajority in Oklahoma’s legislature passed a law in 2021 that now comes into play after President Donald Trump’s nomination of Republican Sen. Markwayne Mullin to be Secretary of the Department of Homeland Security (DHS).
Trump announced Thursday that he will remove DHS Secretary Kristi Noem from her post effective March 31, and nominated Mullin as her replacement, pending Senate confirmation. If Mullin is confirmed by his upper chamber colleagues, he will leave the Senate seat he has held since 2022, prompting Republican Oklahoma Gov. Kevin Stitt to appoint a temporary replacement who, per a five-year-old state law, is required to sign an unenforceable document vowing not to seek reelection.
The Oklahoma state legislature passed SB 959 in May 2021 — which became law that same month upon Stitt’s approval. The law “modifies procedures relating to filling a vacancy in the United States Senate,” according to the text of the bill.
“The Governor is directed to 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 5 years within 30 days of the vacancy occurring,” the legislation goes on to state. “The appointee shall not be eligible to run for the vacancy in the special election or regular election.”
SB 959’s co-author, Republican Oklahoma State Sen. Lonnie Paxton, told KOSU, an Oklahoma-based NPR affiliate, that a form appointees must sign stating they won’t run for reelection is “really not enforceable from the standpoint of kicking somebody off the ballot.”
Paxton, now the president pro tempore of the Oklahoma Senate, explained that while an appointed senator in the state is not legally barred from running for another term after signing the document, the pledge operates on the honor system.
“[W]hen it comes time, if somebody was running and they were challenged … their opponents can certainly hold it [the document] up and say ‘the first thing this person did was lie to everybody when they said they wouldn’t run for that office,’” the state lawmaker told KOSU.
Paxton and co-author, Republican and current State House Speaker Kyle Hilbert, in part proposed SB 959 to prevent unnecessary special election chaos, KOSU reported.
Hilbert told Oklahoma City-based ABC-affiliate KOCO that he co-wrote the law at a time when Oklahoma was “one of very few states” in the U.S. that did not allow its governor to appoint a replacement to fill a vacant Senate seat. Paxton added that this meant even more at the time, given that the U.S. Senate was then split 50-50 between Republicans and the Democratic Caucus.
“[S]o if we had a vacancy in a U.S. Senate seat, we had to go through a special election process, which would’ve taken several months for us to get through that, and that seat would be vacant the entire time, and that would’ve tipped the power of the U.S. Senate,” Paxton told KOCO.
However, according to some legal experts, SB 959’s requirement for appointed senators to pledge they not seek reelection may not be compatible with the U.S. Constitution.
“There may be some interplay between the federal Constitution and state law that needs to be studied,” election law attorney A.J. Ferate, told Oklahoma-based outlet NonDoc in November 2024, while rumors swirled that Trump might appoint Mullin as Secretary of Interior.
“It is certainly a statute that I have been asked about several times over the past few weeks,” Ferate, who previously chaired the Oklahoma GOP, added at the time.
Assuming Mullin is confirmed by the Senate and then resigns, and that Stitt appoints a successor, it would mark the second time the seat has changed occupants during the current six-year term.
The last regularly scheduled election for Oklahoma’s Class II Senate seat was held in November 2020 when then-incumbent Republican Sen. Jim Inhofe won reelection to his fifth full term at the age of 85. Inhofe retired from the Senate at the conclusion of the 117th Congress sparking a November 2022 special election in which Mullin won. The longtime incumbent remained in the Senate until Mullin was sworn into office in January 2023 and Stitt did not need to appoint an interim replacement during this time.
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