The contingency plan

The Democrats' desperation over the increasingly (and amazingly) real prospect of losing Massachusetts is showing. With the stakes so high, we should expect gamesmanship from the other side: vote contests, litigation, holding up certification, refusal to seat, and so forth. Their motive will be to deny the GOP that 41st vote until they can ram Obamacare through. (Contra Shields & Books, they have enough hubris to try.)

Looking ahead to this onslaught, it's incredibly important that we understand something: the GOP doesn't need a 41st vote to stop Obamacare. Got that? We don't need to seat Mark [That's "Scott" not "Mark" - sorry, crossed wires! -Simon] Brown to stop Obamacare. We need to deny the Democrats the 60th vote needed to invoke cloture. Thus, the New York Times' Adam Nagourney gets it right ("A victory by Mr. Brown would mean losing the 60th vote Democrats need to stave off a filibuster in the Senate"), while the Washington Post's Lori Montgomery and Michael Shear do not ("Brown would give Senate Republicans a crucial 41st vote").

Why does this distinction matter? Well, earlier this week, I wrote a post asking an important question: when does Paul Kirk's appointment to the Senate expire? The Seventeenth Amendment authorizes such appointments—or rather, authorizes the authorization of such appointments—"until the people fill the vacanc[y] by election...." This reads to say that Kirk ceases to be a member of the Senate, and becomes ineligible to cast that sixtieth vote, when the election takes place—not necessarily when Brown takes his seat. If so (and we must be prepared to press the point), gamesmanship about seating Brown becomes irrelevant.

Our parry is shaped by their thrust. I envisage two likely scenarios and two arguments in response. Will the field of battle be D.C. or Massachusetts? The Senate Democrats in D.C. could refuse to seat (or slow-walk the seating of) Brown; that was explored in my earlier post. If that happens, the argument is straightforward: Kirk ceased to be a Senator with Brown's election, regardless of whether his successor has been seated. Alternatively, the Massachusetts Dems could find one or more excuses for delaying certification of the election. (They are brazen enough with the stakes this high.) If that's the game, we'd have to make an additional (and much harder, although not impossible) argument: that the appointment expires when the election takes place rather than when its results are certified. I think that the first one is entirely plausible. The second is much tougher, but not impossible.

Nevertheless, there are some messy details to consider:

1. Standing. Who has standing to sue? See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992). The hurdle here is injury in fact. It wouldn't be Brown, because the issue isn't his right to vote in the Senate, even assuming that he has one. It can't be a taxpayer, see Frothingham v. Mellon, 262 U.S. 447 (1923); Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007); Winkler v. Gates, 481 F.3d 977 (7th Cir. 2007) (Sykes, J., concurring). We need someone who will suffer a personalized injury arising from Kirk's vote (or rather, legislation that passes but would have failed but for his vote), and it must be an injury that will redressed by preventing Kirk's vote, see Friends of Earth, v. Laidlaw, 528 U.S. 167, 185 (2000). What's more, it should be noted that even without the 60th vote, the Democrats have options. Implausible though it sounds, they could try getting the Senate bill through the House, unamended. They could return to the idea of using reconciliation. Both of those options have risks and costs, but what do they do to the requirement that our plaintiff's injury be "actual or imminent, not conjectural or hypothetical"? Lujan, supra, at 560 (internal quotation marks omitted). Remember, it does not follow that all constitutional violations are adjudicable, so we cannot safely assume that there is a viable plaintiff.
2. Defendant. Does our plaintiff sue the secretary (or other appropriate officer) of the senate, seeking an injunction against their accepting Kirk's vote? Or Kirk himself, seeking an injunction against his casting that vote in the first place? (It's much simpler if you simply want to prevent a state from certifying the election, cf. Phillips v. Rockefeller, 435 F.2d 976 (2d Cir. 1971).)
3. Where and when. Two questions under this heading. First, is it a political question? Clearly not, I think. The judgment of who won an election is be a political question, to some extent; the issue of whether an election has taken place is not. Second, could we just wait until Obamacare passes and then file a facial challenge based on the infirmity of Kirk's vote? In that environment, a plaintiff would be easier to find, and the necessity vel non of Kirk's vote will be a matter of record. If that happens, though, might the court expand the enrolled bill rule to reject such a challenge, cf. United States v. Munoz-Flores, 495 U.S. 385, 408-10 (1990) (Scalia, J., concurring)? And what of the court's salutary restriction of facial challenges in recent cases, see Gonzales v. Carhart, 550 U.S. 124 (2007); Crawford v. Marion Co. Elect. Bd., 128 S. Ct. 1610 (2008)?
4. Resolution on other grounds. What about the law passed last September to authorize Kirk's appointment (hereinafter "September Act")? Perhaps we need not decide the constitutional question, see Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); cf. NAMUDNO v. Holder, 129 S. Ct. 2504 (2009). The September Act provided that "[u]pon failure to choose a senator in congress or upon a vacancy in that office, the governor shall make a temporary appointment to fill the vacancy; provided, however, that the person so appointed shall serve until the election and qualification of the person duly elected to fill the vacancy...." Now, I'm not familiar enough with Massachusetts law to know what gloss "qualification" been given, but if I had to guess, it means certification of the election. On that assumption, while it perhaps authorizes a lengthier appointment than the Seventeenth Amendment allows (more on that anon), it seems to mean at least this: that so far as the September Act is concerned, Kirk ceases to be a Senator when the election is certified. Thus, even without the Seventeenth Amendment's limits, a D.C. based play by the Democrats operates within a very narrow window of opportunity.
   
   
5. The Seventeenth Amendment question is not open and shut. Over and above the standing issue mentioned above, there are problems:
   
   
   1. "until the people fill the vacanc[y] by election as the legislature may direct" (emphasis added). Notice that the key event that must be satisfied is not the holding of an election (Kirk's appointment probably does not expire when the polls close), but the filling of the vacancy by the people at an election. If the people have voted, the results have been certified, but the Senate has not seated the victor, has the vacancy been filled? This is the best argument for Democrats if they choose (or are forced) to play the game in D.C.
   2. "until the people fill the vacanc[y] by election as the legislature may direct" (emphasis added). The states have a "reasonable degree of discretion concerning both the timing of vacancy elections and the procedures to be used in selecting candidates for such elections," Valenti v. Rockefeller, 292 F. Supp. 851, 856 (1968), aff'd, 393 U.S. 405 (1969), so they presumably also have reasonable discretion as to the election process itself. Part of that process is certification. Are the election itself and its certification discrete events, however, or must they be taken together? Must the election have been certified to constitute a completed election for purposes of the Seventeenth Amendment?
   3. "until the people fill the vacanc[y] by election as the legislature may direct" (emphasis added). If the Seventeenth Amendment doesn't answer the question asked above (i.e. whether or not certification is required for a completed election), is it capacious enough to allow a state to say that it is? The emphasized language suggests that the answer is "yes." We saw above that the September Act authorized an appointment until (we are assuming) the certification of the election. Unless the original meaning of "election" in the Seventeenth Amendment can be convincingly shown to mean solely election, meaning the casting and counting of votes, to the exclusion of the casting and counting of votes, and the reporting and certification of the results, it is almost certain that in authorizing an appointment until certification, Massachusetts did not act ultra vires. If that is so, then Kirk can remain seated until certification.
   
   

The Democrats' best hope is to play a home game, delaying certification. That preserves the widest possible range of options while maximizing their defenses against legal challenges. Nevertheless, once certification takes place, the landscape seems fraught. Even if the U.S. Senate exercises its right to judge the Massachusetts special election, the fact will remain that it took place, the core point of the Seventeenth Amendment argument. And the September Act seems to spell the end of Kirk's tenure at the point of certification, offering an alternative basis for restraining his ability to vote.

Since I started writing this post yesterday, others have picked up on the idea. Good. The broader an airing, the better.

Added: A review of Senate precedent (HT: Adler)