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Sunday, January 17, 2010
By Steven L. Taylor

There has been for about a week that should Scott Brown pull out a win that the state would try to delay him taking his seat so as to allow a a vote on health care reform (I noted this, for example, here).

Along there lines, Fred Barnes asserts that (appointed Senator) Kirk Can’t Vote After Tuesday:

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.

Quite frankly, I am not sure how “election and qualification” in this case can mean anything other than certification of election.   I am dubious, in fact, that the qualification in question have anything to do with the constitutional ones, but rather the legal qualifications conferred by the complete election process.  For one thing, I doubt one can even be a candidate for Senate if one does not fulfill the fundamental constitutional requirements, so it would be a bit odd to insert them in the law describing this stage of the process.

I suppose that one could try to argue the above in court, should it come to it, but somehow I doubt it will be an issue.  Indeed, I am dubious of the notion that there will be any attempts to delay Brown’s swearing-in should he win.  I would argue that there are only two possible outcomes Tuesday night.  The first is that there is a clear winner (either Brown or Coakley) with the loser conceding election night and the winner being sworn in rather quickly (like the NY23 race).  The other is that the race is too close to call on election night with finality hinging on absentee ballots or a recount (which could go on for a while, as Minnesota recently demonstrated).   The notion that Brown will win decisively and yet be denied the seat via nefarious machinations makes for good speculative theater, but strikes me as highly unlikely.  And let me be clear:  if Brown is the clear winner on Tuesday night it would be unreasonable and unjust for such machinations to be deployed.

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One Response to “Can Kirk Vote After Tuesday if no Winner is Certified?”

  1. PoliBlog: A Rough Draft of my Thoughts » The Kirk-Brown Senate Seat Swap Says:

    [...] question follows on from some pre-special election concern that even if Republican Scott Brown won the race (he did, in case you’ve been under a rock) that [...]


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