Let’s start there. This has been examined a lot since the idea was first floated in 2016 — Elizabeth Warren can manage the timing of this so that Gov. Baker will not be able to full her seat with an appointment. She can ensure there is virtually no vacancy period. It’s that simple.
Mass. law is unique in this respect — so don’t try to bring in understanding of what has happened anywhere else, ever. There is no precedent for this, but it really is true.
She doesn’t have to resign to trigger the special election campaign period. She just has to notify the Governor that she will resign. The statute makes this very clear:
“Filing a letter of resignation creates a vacancy under this section, even if the resignation is not effective until some later time...”
The neat part of this is she can accept her nomination at the Convention, which occurs on the 100th anniversary of the ratification of the 19th Amendment (Aug 18th). She can notify Gov. Baker at that time, that she will resign her Senate office sometime after January 3rd (the Senate may be voting on the new VP, if there’s an Electoral College tie)— or even on her swearing in on Jan. 20th. That letter will start the clock for Gov. Baker, not the actual vacancy. The special election must be held within 145-160 days. In other words, in January 2021.
Warren and Baker can stage-manage the timing of the resignation in the letter a little, if Baker wants to have the special election in early January, rather than mid-to-late January. Warren has to leave the seat before the election is held (not before it is scheduled). The larger point though is that this can be arranged so that there will be an ELECTION in place to name her successor, when Warren actually resigns her seat. Technically, the law requires that the election be held after the effective date of her resignation [“the date of the election to fill a vacancy under this section shall be after the resignation is effective”], but we could be talking about days here — or even a week or two to count the votes. The transfer of power could be limited to the period between Jan 3rd and Jan 20th.
I suppose Baker could name an interim Senator to fill the seat during 2 — 3 weeks in January while the voting is ongoing, but the new ELECTED Senator could be in place on Jan 20th, when the Senate begins to take up confirmations and new legislation under the new Administration. I find it unlikely he would be bothered to appoint someone for such a short time, unless there’s some absolutely crucial vote in that period — perhaps making sure Trump leaves a country in place.
What about conflicting duties, you might ask? How does one serve in the Senate, taking crucial votes this Fall, while running for Vice-President, or even President? I suppose that Mitch McConnell might think he has less incentive to compromise on legislation then, if one of the Senators on the other side is running for President. On the other hand, it might even put MORE pressure on him to compromise. VP candidate Warren could really bring a lot of attention to the issues. Mitch might even be scrambling to hold his own seat.
Also, it’s worth noting that there isn’t likely to be much actual on-the-ground campaigning this summer and fall, so nominating a running mate who has Senate duties is not going to be a big problem. It might be a net positive.
There’s a further thing to point out which lawyers such as myself have concluded about the uniqueness of the MA law and Warren’s situation. Given that the special election would be triggered by a letter of resignation to take effect 5 months later, what happens if the Dem ticket fails in November? I believe — as do others — that she can then withdraw her letter of intent to resign, which would then force Gov. Baker to cancel the special election.
Admittedly, this is unclear. There may be some room for argument here, especially if the parties nominate their candidates on Nov. 3. The law says that
“Filing a letter of resignation creates a vacancy under this section, even if the resignation is not effective until some later time, but the date of the election to fill a vacancy under this section shall be after the resignation is effective.”
This clearly states the date of the election will be after the effective date of the resignation. It doesn’t say she can’t pull back her resignation before it becomes effective. I imagine this provision is meant to prevent some shenanigans, so that the resignation would have to happen without knowing the outcome of the election. I believe it doesn’t preclude just pulling back the resignation before that date. I’m of the opinion that it would be allowed. She would be the elected Senator from MA, entitled to the office until and unless there is someone else in the office, and she can decide to un-resign until then.
It’s that last caveat that has me wondering how this would shake out. I’d like to see Joe Kennedy abandon his vanity challenge to Ed Markey in the primary. If there’s another Senate seat to run for, he could probably be easily persuaded to do so. Still, he might hesitate to do it, if he thinks that Warren might pull back her resignation intent, depending on November results. It would still be the decent thing for him to do. He could decide to stand for his seat in the House, and run in a primary to fill Warren’s seat. Worse thing that happens is he stays in the House.