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Hearing on interim Senate appointment set for Wednesday, Sept. 9, 1 pm

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And we’re off!  The Elections Committee is holding a hearing on “the interim filling of a vacant Senate seat and specifically H.656” on Wednesday, Sept. 9, at 1 pm.  It’s in Gardner Auditorium, so apparently they’re expecting a big turnout.

Here’s the bill.  Note how deftly it finesses the issue of eligibility of the appointee to run in the special election:

Section 140 of Chapter 54 of the General Laws, as appearing in 2006 Official Edition, is hereby amended by inserting, after subsection (e), the following new subsection:

           (f) The Governor shall appoint an interim Senator to a senate vacancy after the deadline for qualifying as a candidate in the special senate election has passed, provided the appointee is not a candidate in said special senate election.  The appointed senator shall serve until a successor is duly elected.

Completely avoids the constitutional problem that some of us have been bashing around in recent threads.  This way, the appointee is not ineligible because the legislature said so; he or she is ineligible because he or she missed the filing deadline.  Excellent, excellent solution.

This thing should pass, and pass quickly.

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  2. My reading of the proposed dates is that the “deadline for qualifying as a candidate” is not until November 12th (or maybe as early as November 3rd).

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    p>Whatever the final date, this proposal seems likely to leave vacancies for about half of the five month period.  A quicker appointment would be possible if we could simply agree to accept a “promise” that the appointee would not run, enforcable only by the electorate.

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    p>Still, I’m pleased that this solution does mitigate any concerns about constitutionality. That is truly an excellent thing.  It also should resolve the questions around the enforceability of an appointee’s “promise” not to run in the special election.

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    p>I would support this law but there appears little need to “pass this quickly” (unless you mean sometime in the next two months).

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    p>

    • to clarify in the bill exactly which deadline they’re talking about.  The last thing we need is more ambiguity on this.

    • That would have to be cleared up.  I had not considered the possibility that someone could be appointed and then have until November 24, 2009 (in this case) to change to an Independent and submit papers to be on the general election ballot.

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      p>At that point there’s only a month and a half left until the election, so if we’ve waited that long, why not just leave it vacant until the election?

  3. The appointed senator shall serve until a successor is duly elected.

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    p>Does this avoid running into Coleman v Franken type problems?

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    p>Shouldn’t the interim serve until the SOS presents certification to the US Senate? Or is that what “duly” means?

    • I agree that “duly elected” is kind of a vague term froma legal standpoint.  In other provisions of Massachusetts law , the term used is “duly elected and qualifies according to law.”  It would be wiser, I think, to use this term or to specifically reference “certification” to avoid the MN problem altogether.

      • …whatever the language is required to be such that the victor is sworn in at the earliest possible moment and the appointed Senator served right up until that moment, thus no gap?

    • Dean Barkley was the interim in MN. Walter Mondale ran against Coleman in the general election and lost.  

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      p>Franken defeated Coleman’s bid for reelection.  Barkley entered THAT race and served as a something of a spoiler.   There was no interim to cover…

  4. Would lacking the signatures make them ineligible?  Even without submitting any signatures, the interim guy could actively try to be elected with a write-in or sticker campaign, right?

    • I think it would take the literal Second Coming for a candidate who could win statewide on a sticker campaign, bringing forward the literally tens of thousands of volunteers that would be necessary to do so.

      • If Curt Schilling were appointed, for example, and then said he enjoyed being Senator and would be happy to serve if people wrote his name, people might write his name, even without a sticker.  Would they have to spell it exactly right for it to count?  Could they just write “Schill”, or “38”?

        • In that scenario, if Schilling were the appointed Senator, and he announced on WEEI he wanted to stay Senator and people should write in his name, that buzz would be part of “the generally known conditions attendant upon the election” and so if someone just wrote “Schilling”, “Shill”, maybe even “Curt”, that would be enough to indicate the voter’s intention, and would count.  If Dukakis were running a write-in, just writing “Duke” would indicate a vote for him.  Being a statewide election actually makes it easier, it lowers the bar of showing intent.

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          p>From here.

          All write-in or sticker votes should include the correct name and address of the candidates. Courts have ruled that a vote should be counted whenever the intent of the voter can reasonably be determined, even if a voter omits the candidate’s address or makes a mistake in the name or address. In O’Brien v. Board of Election Commissioners, 257 Mass. 332, 338-339, 153 N.E. 553, 556 (1926) the court said “that if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in the light of the generally known conditions attendant upon the election, effect must be given to that intent… The omission of the residence … on some ballots on which the name had been written by the voters rightly was found not to invalidate such votes.” Maiewski v. Board of Registrars of Voters, 347 Mass. 681, 199 N.E. 2d 680 (1964).

    • First. a write-in and sticker campaign are two terms for the same thing.

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      p>Second, it would be so unlikely that an interim appointee could successfully run for statewide office in a period of a few months (after breaking at least an implicit promise to the electorate not to run for the seat), that this possibility is not really worth considering.

      • by campaign staff and volunteers, cost money, but also serve as a physical reminder and motivator and word-of-mouth facilitator, and they also help ensure that the vote is counted, whereas write-in votes have to be legible, spelled right, lack the physical reminder, etc, but don’t require a staff to print and distribute or cost money.  There could be a combination of written-in votes and stickered-in votes too, of course.  So I think it’s wrong to say they are the “same thing” because it leads to the impression that you have to have a sticker to write in a vote.

        <

        p>And, second, with this proposed wording, there is no implicit promise not to run for the seat, they are just given a severe handicap.

    • First, a write-in and sticker campaign are two terms for the same thing.

      <

      p>Second, it would be so unlikely that an interim appointee could successfully run for statewide office in a period of a few months (after breaking at least an implicit promise to the electorate not to run for the seat), that this possibility is not really worth considering.

  5. Is the advantage of incumbancy so strong that it should override the advantages of the Gov installing his favorite candidate in advance of an election?  If the Gov makes a terrible choice, or we want to send a Republican instead, we can replace him in January, or, we can affirm his choice.  What’s wrong with that?

    • If you don’t like the appointee, elect a new senator.  If you don’t like the way the governor handled the appointment, elect a new governor.  I don’t get the fascination with prohibiting the appointee from running.

      • Because the appointee would suddenly be an incumbent, and incumbents tend to win elections.

        <

        p>Would you have made the same argument when it looked like Romney was going to get to appoint a Republican to replace John Kerry?

        • it wouldn’t be much of an advantage, compared with the Gov’s endorsement, which would be the real advantage.  The appointed Senator would have just as much chance to make a buffoon out of himself and be rejected as he would to demonstrate composure and competence.

          <

          p>And was there a special election with the old law, or did the governor appoint someone to fill the remainder of the term?

  6. Isn’t this all do to the filibuster rules. How about if the US Senate makes it so that the filibuster is a function of seated Senators, instead of the magic 60?

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    p>This is easier than getting 50 states to jump through hoops.

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    p>I just wasted 45 seconds of my life.

    • As I have consistently heard it, the “60-vote threshold” is actually “3/5 of the Senate, rounded up”.  So at the moment, because there are 99 senators, the threshold is the ceiling of (3/5)(99) = 59.4, or 60.  If there were an interval between Sen. Martinez’ resignation and his successor’s swearing in, for example, the threshold during that period would be the ceiling of (3/5)(98) = 58.8 or 59.

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      p>The rounding up makes sense because it means “at least three fifths” — 59 is not three fifths of 99, it’s less.

    • In order to break a filibuster, 3/5 of the sitting Senators are required for cloture. With 100 senator it is 60. With 99 senators it is 59.4. Since there are no 0.4 senators it is effectively 60.

  7. David – there is NOTHING barring a statewide sticker campaign to win the primary.  In fact, given the usual low turnout in a Primary, it might be easier than a general.

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    p>An ‘implicit’ promise?  Like the WRITTEN one filed with the House Clerk that Meehan repudiated when he tired of term limits?

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    p>Want to convince me that Ted Jr. wouldn’t be CONSIDERED a second coming?  Since he’s gonna win anyway and all?

    <

    p>And if they are hell bent on opening this can of worms, how about correcting an obvious flaw?  The current statute defines the time frame for the special election, and those dates are now declared.  So what happens when Sen…uh…JIMMY breaks his neck windsurfing in a rip tide on Columbus Day weekend – we need ANOTHER special election?  And who will be JIMMY’S interim?  People are already kvetching about the $5 milllion for the one special – what if it’s $10 m for two?

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    p>At last count, Sen. Jacques’ gun law has been modified 17 times – because she didn’t know that veterans marched with guns in parades, and then she didn’t know there was such a thing as a black powder Civil war reenactor, and then because she didn’t know there was such a thing as a Revolutionary war reenactor, different from a Civil war buff, and then because…

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    p>The Democrats are keeping to their own high standard of legislation drafting.

    • Your histrionics are unbecoming.  

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      p>A sticker campaign?  Please.  Your imagination is getting the better of you.

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      p>If you’re so worried about the Dems’ legislative drafting skills, why doesn’t Jones refile his 2004 amendment, of which he was once so proud?  If it has a way to keep the interim from running, we’ll back it.

      • Appointment?  Fine.  Special election?  Fine.  Hybrid?  Goof.

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        p>First goof – passing the bill in the first place, as a feel-good piece of Bush Bashing.  Kerry walked around The Building early November, and the fatuous fell all over themselves calling him Mr. President.  They couldn’t wait till the election was OVER to see if it was even a issue?

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        p>Second goof – the timeframe pushed out to allow everybody to get ready for the primary; it’s what prevents calling an earlier special now.

        <

        p>Call me imaginative, but I think that a fine insult from those who couldn’t contemplate Dubya’s reelection!

    • Please site one person who has won a statewide sticker campaign in Massachusetts against someone whose name was on the ballot.

      <

      p>Hell, no one could get enough write-ins for  Middlesex County Register of Probate last fall to beat a guy who not only was indicted but told everyone he was going to withdraw his name.

        • The 2002 Governor’s race featured no incumbents.
          John Kerry won an open Senate seat in 1984.
          Treasurer’s post has been open for several recent cycles.

          • Of course there have been open seats.  I think what dcsurfer is claiming is that there has never been a case where, in a statewide race, the incumbent ran as a write-in.  (Of course, as we know, it seems to happen a lot around here in local races — Wilkerson, Sciortino, and Decker come to mind.)

            • I just reread the comment in question and realize it could be interpreted that way.  I thought the context was incumbent advantage which would be negated if no incumbent were running.

            • Sciortino probably benefited because the desperate situation created a buzz that got out the young voters.  If he’d been on the ballot, his base would have forgotten about the election.  Wilkerson probably would have benefited in the same manner, and Decker probably will benefit as well.  It’s not necessarily a disadvantage, especially in a special election.

  8. First, at the time of the primary, the hypothetical incumbent will have nothing like five months of incumbency.  Two or three is more like it.

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    p>Second, the date at which the Bill is being said to permit an appointment does not appear to match the actual election schedule.  The law does not reference the latest date for “Political Party” candidates but the altest date, period, which includes, e.g., the Green or Liberty party candidates.

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    p>From Secretary Galvin’s web site:

    <

    p>The last day for delivering nominating papers to town clerks is November 24.  <– That’s for non-party candidates.

    <

    p>5:00 P.M. last day and hour for filing nomination papers, including enrollment certificate, with the Secretary of the Commonwealth.

    <

    p>November 3, 2009  <– for Party candidates

    <

    p>December 8, 2009  <– for non-Party candidates.

    <

    p>Those dates are highly appropriate, because non-Party candidates do not have primaries, and there is no compelling state interest in choosing the General Election candidates of non-party (‘minor party’) candidates well before the candidates of the Political Parties are chosen.  To the contrary, our long-suffering town clerks and city boards of election are being given a present, namely the non-party and political party candidates drop their nominating papers on their doorsteps at different times.

  9. … survive federal judicial scrutiny. If for no other reason than the fact that it creates two class of citizens…those eligible and those not…based on the desire to be Senator.

    • I have been probably one of the most vocal critics of the idea that the Legislature should attempt to put any legal, enforceable restriction on who can or cannot run for Senator.

      <

      p>However, it is very clear (legally and constitutionally) that it is perfectly permissible for state lawmakers to limit the Governor’s appointment powers.  The proposed new appointment law would do just that, limiting the Governor to appointing a temporary Senator only at a specific time and only those who will have already failed to qualify to be on the ballot for the special election (at least major party candidates – the sloppy language isn’t clear on how the unenrolled are treated).

      <

      p>It is clear that lot’s of restrictions on the appointment process (again, not on the election process) are permissible.  Hawaii, for example, requires both that the appointee be a member of the departing Senator’s party but that the governor makes an appointment by selecting from a list of three prospective appointees submitted by the party itself.  

      <

      p>This appears to be legal (and consistent with the 17th Amendment), so the MA law is almost certain to survive judicial scrutiny.

  11. That’s the approximate length of time our “appointed” senator will get based on the election window in this legislation.

    <

    p>Is that really worth electioneering to have a non-elected, insider-appointed person warming the seat for that long?

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    p>And if a health care package can’t pass without this one extra vote should we not look at the substance of the legislation as the reason instead?

    <

    p>We decry the hyper-partisanship and growing extremism of the Republican party, but this is contributing to same thing on the other side.

    <

    p>I for one hope the Mass. legislature exercises some restraint and does nothing. Senator Kennedy’s legacy will still shine and I imagine the bureaucracy will survive until January.

    <

    p>(Now watch as my rating tanks like Deval’s)

  12. I’d go back to the beginning to be explicit about what the law should accomplish that would benefit all citizens of the Commonwealth by facilitating full representation in the Federal government at the earliest possible moment, and consider how it can be done in a way so as to not harm the interests of Democrats in the Commonwealth. It should:

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    p>1.Be fair to all political parties regardless of which party holds the Governorship

    <

    p>2. Allow the Governor to appoint an interim senator at the earliest possible moment since the whole point is to give the Commonwealth full representation including two votes in the senate (or 10 in the House, etc.)  

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    p>3. Not give the appointed interim Senator an unfair advantage in the next election for the seat by effectively making them ineligible.  That way the party that control the Governorship does not have undue influence in the election of the Commonwealth’s senator election.

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    p>3. Set an election date that is most likely to maximize voter turnout, making the election as democratic (small d) as possible.  We should probably look at state-wide election turnouts on Election Day versus special elections to support this argument.  

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    p>This approach also has the obvious benefit of insuring the largest voter turnout that benefits the party with the largest voter registration. What we don’t want is a special election with a low voter turnout because that is the scenario in which a minority party can get its nominee elected.

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    p>If you will assume that it’s better for Democrats to have the vote for Senator taken on Election Day, then we must argue that a 2-14 month interim appointment is more ideal than an appointment that can occur only after the field is defined and last a short period of time.  

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    p>

    • that was an obvious violation of our Rules?

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      p>

      Insults, personal  attacks, rudeness, and blanket unsupported statements reduce the level of discourse, interfere with our basic objective, and are not permitted.

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      p>You don’t like it, it’s a big internet, and there are lots of sites where name-calling is acceptable.  So if you are unhappy with the rules here, go somewhere else.  Please.

      • I seem to recall that my comment was made in response to your calling Peter Porcupine histrionic.  Sorry for the confusion.  As far as your request that I cease posting here I think I’ll stick around.  You can, of course, suspend my privileges in your ad-hoc style.  

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