OKLAHOMA CITY (AP) — Oklahoma’s governor should not have scheduled a special election for a soon-to-be vacant U.S. Senate seat because Republican Sen. Jim Inhofe has not yet resigned, an attorney argued Wednesday before the Oklahoma Supreme Court.

Enid attorney Stephen Jones, who gained national prominence as the attorney for convicted Oklahoma City bomber Timothy McVeigh, outlined his case during oral arguments before the 9-member court. The court didn’t immediately issue a ruling.

Jones maintains the 17th Amendment to the U.S. Constitution, which details elections for U.S. senators, specifically refers to vacancies of office, which technically hasn’t happened.

“We believe under any fair reading of the 17th Amendment, there is no vacancy,” Jones said.

Inhofe, 87, the ranking Republican on the Senate Armed Services Committee, announced last month that he plans to resign in January, just two years into his six-year term. He quickly endorsed his longtime chief of staff, Luke Holland, in the race to replace him.

Inhofe also submitted an ” irrevocable pledge ” to the Oklahoma Secretary of State’s Office on Feb. 28, triggering a new state law that allows the governor to set special election dates that coincide with Oklahoma’s regularly scheduled primary, runoff and general election dates. Gov. Kevin Stitt set the special election dates on March 1.

Had Inhofe waited until after March 1 to announce his plans to step down, Stitt would have been able to appoint a temporary replacement to fill the U.S. Senate seat.

Judge Noma Gurich noted the 17th Amendment doesn’t include a definition for vacancy.

Jones responded: “The word is vacancy. We all know what that means.”

Jones also noted there have been cases in the past in which U.S. senators have withdrawn their resignations. He even referenced Tampa Bay Buccaneers quarterback Tom Brady, who announced earlier this month he planned to return for his 23rd NFL season, just six weeks after announcing his retirement.

Oklahoma’s Solicitor General Mithun Mansinghani said Inhofe’s announcement that he plans to resign creates a vacancy, “even if it’s effective in the future.”

Mansinghani also said if Jones’ argument is successful, it would undermine the right of citizens to vote for their U.S. senator and increase the likelihood that there is an unelected person in that position.

“It really undermines the ability of the people to have an elected senator at all times,” he said. “What’s the point of the 17th Amendment? To make sure U.S. senators are elected by the people.”

Mansinghani also noted there have been recent vacancies in the U.S. Senate in Oklahoma that were filled with special elections. Those include U.S. Sen. David Boren, who resigned in 1994 to become the president of the University of Oklahoma, and the late U.S. Sen. Tom Coburn, who made a similar announcement in January 2014. In both cases, the senators stayed in office until after the special election was held.

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