Kirk Ineligible After Today?
While Senator Paul Kirk (D-MA), serving in the interregnum until Tuesday’s special election to fill the seat of the late Senator Edward Kennedy, has largely been lost in the frenetic, disorganized effort by Democrats to maintain control of Camelot, a new analysis by Massachusetts election law experts has thrusted Kirk back into the spotlight, arguing he will lose his vote after Election Day.
Conservative columnist Fred Barnes Saturday made the case on The Weekly Standard’s website that Kirk would be ineligible after today’s votes have been tallied, writing that Kirk “will no longer be a senator after election day, period.”
With the mobilization of state Democrats to delay Republican Scott Brown’s certification and further the insistence of Democratic attorneys that qualification for the Senate requires certification by state officials, a Brown victory has all the makings of a protracted legal battle. But it’s a battle Republicans are keen on waging if it means denying Democrats the decisive filibuster-proof vote.
Should Brown defeat Martha Coakley tomorrow, the concern among Republicans is that Democrats will force health care legislation through the reconciliation process at a breakneck pace to avoid losing Kirk’s crucial vote before the winner can be certified.
But in the days following the election, it is Kirk’s eligibility, not Brown’s, that matters, according to Barnes, who spoke with Massachusetts election law experts. The attorneys said, for a cavalcade of reasons including state law, Senate precedent, and the U.S. Constitution, Kirk will no longer be the junior Senator from Massachusetts.
Massachusetts election law provides that an appointed Senator remains in office “until election and the qualification of the person duly elected to the fill the vacancy.” Due to the need for counting military and absentee ballots, the winner of tomorrow’s contest may not be certified as such until a month later, during which time Congress is expected to hold key votes on health care.
Senate precedent, however, may provide the most compelling evidence for Kirk’s ineligibility, with striking parallels to the ouster of Senator George Berry, who was awarded a temporary appointment in May of 1973 to fill Tennessee’s vacant senate seat left by the death of Nathan Bachman. While a special election was held in November 1938, the winner was not certified until January 1939.
Much like Massachusetts law, Tennessee law stipulates that appointed senators “shall hold office until his successor is elected at the next biennial election and qualifies,” on which grounds Berry argued for his continued eligibility in the Senate until his successor was formally seated.
Referred to a subcommittee of the Senate Judiciary Committee, Berry’s claim was found without merit. In view of the 17th Amendment, which provides a contingency for governors to appoint temporary senators, the subcommittee concluded, “it seems reasonable to assume that no temporary appointment was to be authorized except for the intervening period between the creation of a vacancy and the day when the people by their votes actually elect a successor.”
Now, the challenge for Democrats, who faced a similar challenge in seating Democratic senator Al Franken of Minnesota last year, will be to disregard state law, Senate precedent, and, perhaps most damning, the will of the voters.
Whether by tomorrow the “duly elected” Senator of Massachusetts is Martha Coakley or Scott Brown, Paul Kirk will no longer represent the interest of Massachusetts in the United States Senate. And if Brown is named senator-elect, as many pollsters and handicappers suspect, Kirk’s vote for Democratic health care reform, on which this election was a referendum, will stand as a wildly inappropriate usurpation of those interests.
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