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Jan. 18 2010 - 2:38 pm | 432 views | 0 recommendations | 3 comments

GOP prepping to block Kirk’s vote — but can they?

Massachusetts Attorney General Martha Coakley ...

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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.


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  1. collapse expand

    The Senate itself has the final word on who they seat and who they do not. It is the Senate rules that require that a candidate be certified as the winner before they are entitled to be seated. There is no Constitutional or other legal requirement on this subject.Thus, if the Senate allows Kirk to hold his seat, no matter for how long, there is no authority that could change the result of Kirk’s vote – including the Supreme court.

    Therefore, until the Secretary of State certifies a winner, the Senate rules require that it cannot seat anyone from the state of Mass. except for the senator who currently holds the seat.

    Even if the senate were to determine that Kirk does turn into a pumpkin on January 20th, and relieve him of his seat, the Governor of the State (pursuant to the very rules that the state legislature put in place which allowed the Governor to appoint Kirk to Kennedy’s seat) would have the right to immediately reappoint Kirk, or anyone else, to fill the seat pending the certified results of the election.

    While we can certainly expect a court battle if Brown wins and is not certified within an acceptable period of time, there is no argument that holds water that Kirk would be removed pending a new senator being sworn in.

    Bear in mind that senators cannot even be recalled in the state which elected them. Only the Senate itself can expel a member just as only the Senate itself can seat a member just as only the Senate itself gets to decide who will be seated.

    • collapse expand

      I think when Brown wins…yes, Kirk can still vote on the city council

      BTW, with all this fraud going on with writing the health bill in secret and buying and selling senators….why have a vote…obama can just come out and declare it the law of the land by Presidential decree…who needs congress

      In response to another comment. See in context »
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    About Me

    While working at Talking Points Memo Muckraker during the 2008 Election, I covered the Justice Department politicization, voting rights law and the insanity of Alaska politics. I loved the beat which was somewhere between the wonky side of politics and the law. The realization was enough to send me off to law school in D.C. -- which seems to be a perfect combination of both.

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