Legal Commentary

When Will the Next Mass. Senator?s Term Begin?

By Jonathan H. Adler

This Tuesday, Massachusetts voters will elect either Martha Coakley or Scott Brown to replace the late Ted Kennedy in the U.S. Senate.  It could take weeks to count absentee ballots, resolve and election controversy if the vote is close, and certify the winner under Massachusetts law.  But would this mean interim Senator Paul Kirk would hold the seat in the interim? I has assumed this was the case, but some Republican lawyers think otherwise.  They argue that Kirk only remains a Senator until his successor is ?elected and qualified,? and that this occurs once votes are cast, even if a victor has not been certified by state officials.  As evidence for this view, they cite the fact that Senators elected in special elections have been paid their Senate salaries as if their position started on the day after the election, not the day of their eventual certification.

This is an interesting argument, but even if Senate precedent supports the view that Kirk cannot cast a vote in the Senate after Tuesday, it?s something of a moot point. Under Article I, Section 5, the Senate is ?the judge of the elections, returns and qualifications of its own members,? so whether to recognize Senator Kirk after Tuesday would be up to the Senate itself.  And should Brown prevail, I doubt the Senate would be in any hurry for him to replace Paul Kirk.

UPDATE: Michael Stern reviews Senate precedent and concludes that Kirk?s appointment expires Tuesday. (HT: Nelson Lund)

Full post as published by The Volokh Conspiracy on January 17, 2010 (boomark / email).