GOP prepping to block Kirk’s vote — but can they?
So here’s an interesting item floating around the Right-side of the Internets: GOP lawyers are already prepping to protest Massachusetts’s Appointed Senator Paul Kirk’s vote on the health-care reform bill if the election tomorrow is close, or Scott Brown wins.
Citing unnamed “Republican attorneys,” Fred Barnes trots out the possibility that after Election Day, Kirk’s vote in the Senate evaporates — regardless of the outcome of the race:
Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy” . . . If Brown wins narrowly and a recount is being conducted, Democratic lawyers might claim that he hasn’t been “duly elected.” Republican attorneys believe, however, that a candidate has actually been elected, though it won’t be clear who that is until the recount is completed.
And in the event of a Brown victory, Barnes claims Democrats are plotting to delay certification of the election results to leave Kirk in the game for as long as possible. So this is the kind of back and forth analysis of the law we’re in for in Massachusetts, unless all of it is made moot with a decisive victory by Democrat Martha Coakley.
But as long as we’re hypothesizing on this perfect storm of state and Constitutional election law, there are a few other interesting issues that it raises. For one, it doesn’t seem to be at all certain that Kirk’s seat in the senate would turn itself into the pumpkin at the stroke of midnight on January 20, especially if the election results are dragged out. Second, if there’s a recount, and a legal battle, could Kirk stay in office and vote on the health-care bill, anyway? And if he does and it’s counted, but a court later rules that Kirk was ineligible, can his vote be vacated?
But all these questions, seem to be trumped by one: What court could hear such an argument? And the answer doesn’t look great for conservatives.
“I’m not convinced enough that [the Republican's fight] would have much chance of succeeding,” says Curt Levey, executive director of the conservative Committee for Justice. “You can’t go to federal court based on Massachusetts law, you can’t go to federal court based on senate precedent . . . the main thing they’re hanging their hat on is the Massachusetts law that says ‘until election and qualification of the person duly elected to fill the vacancy.’ But that’s something you’d have to do in a Massachusetts state court, and it’s hard for me to imagine them doing well in a state court and hard for me to believe a Massachusetts court would leave Massachusetts without a senator.”
Regardless, these questions could still wind down a very twisted, and easily politicized path — not unlike the one we saw in Minnesota, last year. And while the novel issues might fascinate scholars and earn party lawyers plenty of billable hours, it could be a devastating outcome for the people of Massachusetts and the Democratic party if they’re left without a senator for one of the most important votes in history.