Will Certifying The Massachusetts Winner Become The Next Controversy? : It's All Politics If Scott Brown wins today's Senate race in Massachusetts, and doesn't get sworn in for two weeks — allowing Democrats the chance to pass health-care legislation — don't be surprised if you hear an outcry from the right.
NPR logo Will Certifying The Massachusetts Winner Become The Next Controversy?

Will Certifying The Massachusetts Winner Become The Next Controversy?

All day long, the phone has been ringing off the hook.

What have you heard? What do you know? What are exit polls saying?

Here's what I do know. The weather in Massachusetts has been lousy. Turnout is said to be heavy. Voting ends at 8 p.m. And I haven't seen any exit polls. They may not, in fact, even exist. (After all, when the decision whether to have exit polls was made, the race was not considered close. It was a Coakley runaway, we all knew. But that, maybe a couple of weeks back, was a lifetime ago.)

Here's one aspect of the vote that could cause a political firestorm.

Let's say, for argument's sake, Scott Brown (R) wins. We know that would make him the Republicans' 41st vote in the Senate, which theoretically gives the GOP the power to filibuster legislation that they oppose.

Such as, oh, say, health care.

House Majority Leader Steny Hoyer said today that health-care legislation could be passed as soon as 15 days. "The Senate bill clearly is better than nothing," he told reporters -- indicating, for the first time, that the House is clearly considering passing the Senate version of health care ... despite the differences the two chambers have on the legislation.

Why the sudden inclination to give in to the Senate? And why within 15 days?

Why, that's how long it may take to seat the winner of today's Senate race. William Galvin, the Massachusetts secretary of state and a Democrat, has said that local election clerks must wait at least 10 days for absentee ballots to arrive before they certify the results, and then they have an additional five days to file the returns with the Sec/State's office.

I'm not suggesting delaying tactics or any kind of chicanery here. Galvin is correctly citing state law. Plus, as he said, "My reputation precedes me. I'm not going to sacrifice my reputation for any race of any kind."

But not everyone will be convinced. You know the blogosphere will be rife with conspiracy theories and rumors from the right should Brown win and is not sworn in until the Democrats hold a vote on health care. Brown himself has suggested possible shenanigans.

Some Republicans want to know if there is a double standard.

Case in point: Just three days after he won the closely-watched contest in NY 23 on Nov. 3, but before his election was certified, Democrat Bill Owens was sworn into office -- as I wrote at the time, "just in time to cast a what-turned-out-to-be-a-much-needed-vote for the Democrats' health-care bill" the next day.

Case in point: Niki Tsongas, the Democratic candidate and winner in the special 2007 election to replace Rep. Marty Meehan (D-MA), who had resigned, was sworn in two days after the election, courtesy of Galvin's office.

Case in point: According to the Talking Points Memo blog, Ted Kennedy himself was sworn in one day after winning his special 1962 Senate race. But there are differences, notes TPM:

Why the exception for Kennedy? The short answer is the Senate disregarded its own rules and seated him despite lacking certification (the state certificate arrived a few weeks later). The longer answer is that there are some important differences between Kennedy's election 47 years ago and this year's race in Massachusetts.

Most crucially, according to [Senate historian Don] Ritchie, the Senate was not in session in November, 1962, which means nobody was around to object to seating him immediately--the rules were waived and Kennedy was sworn in without certification. "Kennedy was sworn in the next day," Ritchie emails. "He won by a commanding majority, and the Senate was not in session, so there was no challenge, even though the paperwork for his certification came later."

In other words, if Republicans want to seat Brown (should he win) a la Kennedy the Senate would have to waive the rule, and swear in the 41st vote against health care. That won't be easy. Any senator can object to a request to waive the rules, and overriding the objection takes 60 votes. In other words, the Senate's 40 Republicans would need to find 20 Democrats willing to seat Brown without certification in order for him to take office early.

It's apples and oranges comparing the Owens and Tsongas situations with the current one, TPM continues:

The House and Senate are different bodies, governed by different rules, and it isn't clear whether the Secretary of the Senate would honor an unofficial certification. ... And in Tsongas' case, the seat she filled was actually vacant--awaiting certification would have meant delaying representation for Tsongas' district. By contrast, the Senate seat in Massachusetts will be filled by Sen. Paul Kirk (D-MA) until a new member is sworn in.

If Brown wins, the hue and cry about when to swear him in will begin almost instantly.