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Much ado is being made of Fred Barnes' articleclaiming that if Coakley loses, Senator Kirk, the interim Massachusetts (not Massachusettes, Martha) Senator, would cease to be a Senator immediately upon the closing of the polls.

Barnes' claim is apparently being taken at face value by much of the blogosphere.  Keep in mind, first of all, that it is Fred Barnes making the claim (he is right about as often as Ben Affleck makes a good movie- it can happen, sure, but when it does, admit it- you are surprised).  Also keep in mind, the "source" for his article is an unidentified group of Republican attorneys.  Well of course they think Kirk loses his seat immediately.  They are charged with promoting their client's best interests so long as they have a colorable legal claim.  They aren't charged with weighing all information and coming to the fairest reading of the law.

As is frequently the case, the legal "answer" isn't immediately obvious (and may actually favor Democrats in this instance).

Barnes' claim is based on a reading of Section 140 of Chapter 54 of the General Laws of Massachusetts, which says:

(f) Upon failure to choose a senator in congress or upon a vacancy in that office, the governor shall make a temporary appointment to fill the vacancy; provided, however, that the person so appointed shall serve until the election and qualification of the person duly elected to fill the vacancy pursuant to subsection (a) or (c).


Ok, that gives us part of the answer.  Under Massachusetts law, Kirk can serve until his successor is elected and qualified.  So, what does it mean to be "elected and qualified?"

Massachusetts law requires that each election for Senators be certified, and that the certification can take as long as 15 days after the election date.  Is a candidate "qualified" prior to certification of the results?  Is someone even "elected" if the results aren't certified?  That decision may not depend upon an interpretation of Massachusetts law.

The US Constitution provides that the Senate is the "judge of the elections, returns and qualifications of its own members," and that provision would trump any state law.  

The 17th Amendment, however, muddies the water a bit by providing:

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

An argument could be made that the 17th Amendment modifies Article I of the Constitution with respect to special elections by punting the Senate's ability to determine "qualifications" to state legislatures.  In that case, Massachusetts law on the issue would be highly relevant, and Democrats could certainly contest that certification is the final step of qualification and/or election (if certification has nothing to do with qualification or election, why require it in the first place?).  

Such a reading, however, seems flawed as the text makes no express mention of eliminating such powers, and the legislative history does not suggest that overriding the Senate's role as the judge of its members' qualifications was contemplated.  Instead, it is easier to read the two provisions together- the Senate is the judge of its members' qualifications, and state legislatures have the power to direct the timing of elections (there is a lot of commentary in support of this point).  

Senate custom has been that an interim Senator's term expires immediately upon conclusion of the election.  Custom is not binding on the Senate, however.  Additionally, Article I, Section 5 gives each house of Congress the power to "determine the rules of its proceedings."  Is a requirement that a Senator not be "qualified" until it has received certification from the electing state a "rule of its proceedings?"  A court would have to wander into very sticky territory to hold that Kirk ceased to be a Senator immediately following the Massachusetts election, particularly if the election is as close as expected (and within a margin which could reasonably be expected to shift in Coakley's favor depending upon receipt of absentee ballots, for example).  Furthermore, the court would be stuck with the unenviable proposition of potentially nullifying all bills where Kirk's vote was decisive (which could include the health care reform bill- which judge would want to take on that case?).  

Barnes wants to believe the issue is a slam dunk for Republicans.  It isn't.  In fact, I (biased as I am) think the question leans slightly in Democrats' favor.  Let's just hope we don't have to actually find out the answer.  If the issue were to go to court, one side would be left feeling like the court cheated them and their interests, much like many Democrats feel the Supreme Court cheated them in Bush v. Gore (which would only serve to further weaken public perception of the impartiality of the judiciary).

Hopefully Coakley wins regardless, and all of this is irrelevant.  Those of you in Massachusetts- get out and vote.  

NOTE: I am not endorsing shenanigans designed to delay or prevent Brown from taking office, only discussing the legal issues involved in determining whether Kirk remains a Senator after Tuesday's election.

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Originally posted to thefourthbranch on Mon Jan 18, 2010 at 11:55 PM PST.

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Comment Preferences

  •  Thank you (1+ / 0-)
    Recommended by:

    I appreciate the explanation!

    Join us at Bookflurries: Bookchat on Wednesday nights 8:00 PM EST

    by cfk on Tue Jan 19, 2010 at 12:24:10 AM PST

  •  If the situation were reversed, the law (3+ / 0-)
    Recommended by:
    LordMike, alba, Mike08

    would be disparaged by people like Barnes.

    Republicans: "Laws? For chumps and losers, who needs laws when we've got the megaphone."  

    There's no debate here: certification is always required, and it's not JUST the State of Massachusetts that is involved here, it's The Senate of United States.

    Harry Reid cannot seat a Senator who is not certified.

    How soon we forget what Al Franken went through.

    There's no difference here, special election or not.

    Barnes is full of shit, as usual.

    'The work goes on, the cause endures'

    by shpilk on Tue Jan 19, 2010 at 12:27:00 AM PST

    •  Oh, the Senate can revert to (0+ / 0-)

      Article 1 Section 4, 5 and Amendment 17, if it WANTS to, but that would be very unusual to do, to seat a Senator who is not certified as duly elected by the State.

      'The work goes on, the cause endures'

      by shpilk on Tue Jan 19, 2010 at 12:30:38 AM PST

      [ Parent ]

  •  I think the intent of the law is clear (1+ / 0-)
    Recommended by:

    The interim senator should hold the seat until a new senator is legally able to take the seat.  This will be a very interesting legal case if Brown wins though.  Has the court ever been able to reverse a bill because one of the voters was technically not a senator?  Even if they could, it would seem to be difficult to overturn the vote, because the vote will likely pass without Kirk, the issue would be if the filibuster should have been able to have been stopped.

    And with flaming swords the Aramites did pierce the eyes of their fellow men, and did feast on what flowed forth.

    by Knat on Tue Jan 19, 2010 at 12:33:43 AM PST

    •  Quite right. (1+ / 0-)
      Recommended by:

      I didn't go into this, but the legal challenge to health care (assuming Coakley loses and Kirk helps pass health care reform) wouldn't be that the bill had insufficient votes to pass but whether Senate rules were followed to reach cloture to permit a vote on the bill. Given that the Senate is in charge of its own rules per Article I, the court would have to determine the Senate violated its rules, that the violation is subject to remedy by the court, and that the appropriate remedy is overturning the final vote on the bill (which would mean nullification of the taxes in the bill which would have already been collected, the firing of people hired to implement the bill, the elimination of administrative rules and regulations interpreting the bill, etc. Certainly not a simple matter. Given the strong presumption the Senate governs itself and the challenges in overturning a law based on a court finding that cloture wasn't properly invoked, I have a hard time seeing Democrats lose that battle. Like I said though, ideally we won't need to find out.

      by thefourthbranch on Tue Jan 19, 2010 at 12:47:23 AM PST

      [ Parent ]

  •  Precedent (2+ / 0-)
    Recommended by:
    LordMike, Mike08

    Dems made a fuss over Burris' certificate and the GOP made a fuss over Franken's. Same deal.

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