Monday, January 18, 2010

Can Paul Kirk Vote After The Election Tomorrow?

There is some question as to what happens immediately following the election regarding if appointed Senator Paul Kirk can vote. There has already been some talk about what the Democrats can do or will try, but it is not clear what Kirk can do. There are competing arguments going both ways, but it seems that if a winner is clear than any vote would be imprudent to say the least. Things get a bit more murky if the race is close enough to require recounts. For his part, Brown intends to fly down to Washington by the end of the week to make things 'uncomfortable' for the Democrats should he win.

"Appointed Senator Paul Kirk will lose his vote in the Senate after Tuesday’s election in Massachusetts of a new senator and cannot be the 60th vote for Democratic health care legislation, according to Republican attorneys.

Kirk has vowed to vote for the Democratic bill even if Republican Scott Brown is elected but not yet certified by state officials and officially seated in the Senate. Kirk’s vote is crucial because without the 60 votes necessary to stop a Republican filibuster, the bill will be defeated.
But in the days after the election, it is Kirk’s status that matters, not Brown’s. Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy.” The vacancy occurred when Senator Edward Kennedy died in August. Kirk was picked as interim senator by Governor Deval Patrick.

Democrats in Massachusetts have talked about delaying Brown’s “certification,” should he defeat Democrat Martha Coakley on Tuesday. Their aim would be to allow Kirk to remain in the Senate and vote the health care bill.

But based on Massachusetts law, Senate precedent, and the U.S. Constitution, Republican attorneys said Kirk will no longer be a senator after election day, period. Brown meets the age, citizenship, and residency requirements in the Constitution to qualify for the Senate. “Qualification” does not require state “certification,” the lawyers said.

"Republican John Tower of Texas and then-Democrat Strom Thurmond are both precedents for this action. In both cases, their terms started on the day after election, even though it took weeks for their certification by the state. It’s not clear from Kristol’s article whether they were allowed to cast votes in the Senate, but what is clear is that they were recognized as occupying the seat — and that is an exclusive occupation. Their appointed predecessors could not possess the same seat at the same time, and therefore were excluded from Senate business.

The same would be true if Martha Coakley wins the election, although it won’t present a problem for Democrats in that instance. As soon as the election concludes, the presumption is that the voters of Massachusetts have chosen their Senator. At that point, the rights of the appointed interim Senator conclude.

Past related post:
Berman Post: Scott Brown vs Martha Coakley For Massachusetts Senate
Berman Post: Coakley Getting Nervous
Berman Post: Democrats Getting Nervous Coakley Will Lose
Berman Post: Scott Brown
Berman Post: Ed Schultz (MSNBC) - "I’d Cheat to Keep These Bastards Out" Talking about Brown (R)
Berman Post: Coakley Can Not Fill a Hall Even With Obama
Berman Post: Obama Heckled at Coakley Rally
Berman Post: Coakley And The Democrats Appear to be Falling Apart
Berman Post: Coakley And The Democrats Giving up?
Berman Post: David Shuster (MSNBC) - 'Massachusetts Has Lost Its Mind' Since Brown is Leading Over Coakley

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