PoliBlog: A Rough Draft of my Thoughts

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  1. My (non-partisan) understanding is that Massachusetts law states, rather unambiguously, that Kirk is simply no longer a Senator, regardless of when Brown is “certified” (an extra-constitutional concept used by those who do not understand the difference between the Senate and the Electoral College — there is no such thing as “certification” of a Senator-elect; the word appears nowhere in either Article I or Amendment XVII).

    Comment by KipEsquire — Saturday, January 30, 2010 @ 10:38 pm

  2. Perhaps I need some clarification, but all elections results have to be certified before they are official, yes?

    I suppose, too, I am having a hard time believing that Kirk is, in fact, not legally able to hold the seat and yet neither Brown, the Republican Party in any capacity or the state of Massachusetts is objecting.

    Comment by Steven L. Taylor — Saturday, January 30, 2010 @ 10:53 pm

  3. Steven- I agree with you that the determination of when Kirk’s term ends cannot depend on who benefits politically from the answer. Moreover, it seems to me that every appointed Senator’s term must end at the same point, which must be (1) the date of the special election, (2) the date a successor is certified or (3) the date on which a successor is seated.

    There is a legitimate argument that Kirk’s term ends on the date of the special election, and the most considered Senate precedents adopt that view. On the other hand, more recent Senate practice has been to allow the appointed Senator to serve until the successor is seated. Whether this is more consistent with the language and intent of the Seventeenth Amendment is something that the Senate ought to expressly address and decide.

    It is apparently not in the interest of either political party to bring up the question of whether Kirk is still a Senator. The embarrassment of having Kirk vote on healthcare reform is such that Democratic Senators have stated that the matter should be deferred until Brown is seated. This is presumably fine with the Republicans. One assumes that if the Democratic leadership was eager to have votes on healthcare reform that it would find some way around the problem, most likely by seating Brown earlier (which the Senate could do by unanimous consent).

    Nevertheless, Kirk’s case evidences the possibility of an appointed Senator voting contrary to the wishes of the people expressed in the special election to replace him. This is a legitimate matter of concern, if not outrage.

    Comment by Mike Stern — Sunday, January 31, 2010 @ 9:08 am

  4. Mike,

    Thanks for the response.

    I did not do extensive research, but I am fairly certain based on the Carnahan example I cited and my general memory of these types of situations that your option #3 is the standard practice in these situations.

    Outrage would been warranted if the Senate Democratic leadership has attempted to use Kirk to pass a new version of the health care bill, I will allow. However, the basic continuation of representation from the Senator in a given seat (appointed or not) before the swearing in of the replacement strikes me as both normal and what a state should expect—uninterrupted representation.

    Comment by Steven L. Taylor — Sunday, January 31, 2010 @ 11:39 am

  5. [...] of this appears to ratify the position that I have taken from the beginning on the question of when Senator Kirk has to vacate the seat, which is:  [...]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Senator-elect Brown to be Sworn in Tomorrow — Wednesday, February 3, 2010 @ 3:06 pm

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