Should Scott Brown win tomorrow's Massachusetts special election, Democrats may delay the legal "certification" of his victory. One problem with that scenario--it may be unconstitutional:
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.
This would be a devastating loss for President Obama and congressional Democrats. The bill, dubbed ObamaCare, is the centerpiece of the president’s agenda. Brown has campaigned on becoming the 41st vote against ObamaCare.
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.
[
WeeklyStandard.com]
