Scott Brown, that American Idol fathering, sexiest man winning, pickup truck driving politician has won a decisive victory in Massachusetts.  But even before polls opened, there was a budding controversy over exactly when the election results would be certified and the winner seated.  Several media outlets are reporting that Democrats may attempt to delay Brown’s swearing in, in an effort to push health care reform through before Brown can take his seat.  Instead of providing yet another analysis of the current situation in Massachusetts, State of Elections is going to examine the existing law and customs governing special elections, and take a look at some previous controversies surrounding the certification of special elections.

According to the Congressional Research Services’ report on the subject, the prevailing practice is for state governors to fill vacant positions by appointment, with the appointee’s term to expire on the date that a special election can be held.  Massachusetts’s law specifies that the appointee serves until the “election and qualification” of the person duly elected to fill such vacancy.  The term “qualification” would seem to extend the appointee’s term until after the election results have been certified.   The Massachusetts’s rule appears to be in compliance with Rule 2 of the Senate , which requires that the Secretary of the Senate be in possession of the certifications of election for all Senators. However, it is often customary that the appointee steps down after the special election, and the governor to appoint the special election winner to serve the balance of the term.  Ted Kennedy himself originally won his seat on the Senate through a special election, and took office the day after the election, a full two weeks before that his victory was certified.

In another, slightly less ironic example, Representative Niki Tsongas (D-MA) won her seat on the House in a special election on October 17th.  The very next day, Tsongas was in Washington to cast her vote on the State Children’s Health Insurance Program. Tsongas’s vote stands, despite a Massachusetts’s law that forbids the official certification of elections until seven days after polls close.  How is this possible?  That same law requires that an individual seeking certification must “appear to have been chosen” to the office they seek.  According to William Francis Galvin, Secretary of the Commonwealth of Massachusetts, the unofficial results from the October 17th meet that “appear to have been chosen” standard, despite the fact that many ballots from overseas had not been counted.  Mr. Galvin simply ignored the seven day requirement.  Perhaps he thought that elections should not be constrained by mere formalities like “the law” and “counting votes”.  As Scott Brown could tell you, even American Idol knows that you should count all the votes before declaring a winner.

Anthony Balady is a student at William and Mary Law School, and Editor in Chief of State of Elections.

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