FACTS FIRST

26 O.S. § 12-101(C)(3), the Senate-vacancy statute, says: “if the vacant office is already scheduled to be filled for a full term at the next available regularly scheduled election, then no special election shall be called. In such case, 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.”^[2]

26 O.S. § 12-101(C)(2) says that if a vacancy occurs after March 1 of an even-numbered year, “the special election shall be held at the next subsequent regularly scheduled statewide” elections.^[2] Mullin resigned March 23.^[1]

51 O.S. § 10(C)(1) directs the governor to appoint someone “to serve in such office until a successor is elected.”^[3]

The 17th Amendment lets a legislature empower the governor “to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”^[1][7]

• Counsel for Rep. Kevin Hern, a candidate for the seat, argued that under paragraph 3 the Nov. 3 winner is deemed elected to the vacancy and may take office on certification, ending the appointment then.^[1]
• Counsel for Sen. Armstrong said paragraph 3 doesn’t cover a vacancy that opened after March 1, that the Nov. 3 vote fills only the new term, and that Armstrong serves until Jan. 3, 2027.^[1]

The opinion’s answer: Paragraph 3 applies because the seat was already on the 2026 ballot for a full term. It reads paragraph 2 as only saying when a special election happens if one is needed, and paragraph 3 as removing the need for one here. It also says 51 O.S. § 10(C), as the more specific and later statute, controls over the general appointee rule in 51 O.S. § 15, which includes an “until the end of the term” clause. And it says the governor must certify the winner and cannot hold that up.^[1]

What the opinion leaves open: It says no court has decided the question. It also says the U.S. Senate “remains the judge of the elections, returns, and qualifications of its own members” and that nothing in the opinion binds that body.^[1]

• 1994: Jim Inhofe was elected Nov. 8 to David Boren’s unexpired Senate term and took the Senate oath Nov. 30.^[1]
• 2018: Kevin Hern was elected Nov. 6 to the U.S. House seat Jim Bridenstine had left. Under the law at the time, Gov. Mary Fallin appointed him to the unexpired term, and he took the House oath Nov. 13.^[1]

Hern’s campaign said the opinion “confirms our understanding of Oklahoma law: the winner of the U.S. Senate election in November is eligible to assume office immediately upon certification by the State Election Board.” A spokesperson for Armstrong said, “We are reviewing the Attorney General’s opinion on this complex matter.” Both statements were published by News 9.^[9]

The candidates on the Nov. 3 ballot for this seat, as listed by News 9, are Hern (Republican), N’Kiyla Jasmine Thomas (Democrat), Sevier White (Libertarian), and independents Ron Meinhardt and Curtis Stinnett.^[9] Facts First makes no prediction about the outcome. Results will appear on our election night page.

About the request letters: the opinion says it answers separate requests from Gov. Stitt and Senate President Pro Tempore Paxton and restates their questions. As of Nov. 1, Facts First could not find either letter posted publicly, so we link the opinion, which quotes the questions.^[1]