November 05, 2008

What Will Happen to Senator Stevens' Seat? It is Complicated.

The latest results show Senator Stevens over 3,000 votes ahead. In the event he ekes out a victory (perhaps after a recount), what happens next?

Article I, Section 5 of the U.S. Constitution gives the Senate the power to expel Senator Stevens on a 2/3 vote. The Senate's website notes that 15 members have been expelled in its history, 14 for joining the confederacy. Four members of the Senate have been convicted of crimes; three resigned before being expelled and 1 died. (One of the three who resigned later had his conviction overturned.)

Senate majority leader Harry Reid has said that he will move forward on expulsion, and will not wait for the appellate process. Before the election, a number of Republican Senators, including Sens. McConnell and Ensign, said Stevens should step aside. So expulsion seems likely. On the other hand, Roll Call quotes attorney Stan Brand as saying that if the voters have reelected someone knowing of his conduct, there is a strong presumption against expulsion. He even goes so far as to suggest it raises constitutional problems.

I don't see these constitutional problems; the issue is a political one. Here is how it is explained in a very recent CRS report:

    The Senate, in a similar manner as the House of Representatives in relation to its Members, has expressed reticence to exercise the power of expulsion (but not censure) for conduct in a prior Congress when a Senator has been elected or reelected to the Senate after the Member's conviction, when the electorate knew of the misconduct and still sent the Member to the Senate. The apparent reticence of the Senate or House to expel a ember for past misconduct after the Member has been duly elected or reelected by the qualified electors of a state, with knowledge of the Member’s conduct, appears to reflect the deference traditionally paid in our heritage to the popular will and election choice of the people. The authority to expel would thus be used cautiously when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for the judgment of the electorate as to the character or fitness for office of an individual whom the people have chosen to
    represent them in Congress.

(footnotes omitted)

If Senator Stevens is expelled or if he resigns after the new Senate session begins, what happens next? There's a bit of a dispute over which rules apply. The old rules (see here) provided for the governor to fill a vacancy and then to call a special election afterwards, if the term would expire in more than 30 months. A controversy over the last Alaskan governor appointing his daughter to a vacant Senate seat led Alaska voters to pass an initiative changing the law. Under the new law, the governor still may appoint a temporary person to the seat, who sits only until a special election is called in 60-90 days after the vacancy occurs. Because Senator Stevens' term would expire in more than 30 months, there's not much difference between these old and new laws, except as to the timing of the special election.

There's a constitutional question under the 17th Amendment whether an initiated change to the means for filling Senate vacancies are constitutional. Vik Amar thinks it is. I'm not so sure (I address a similar, but not identical, issue in this paper).

So, either way, the governor will have the power to fill a vacancy at least for the short time (meaning this Washington Wire post is incorrect at the end). The difference might only be in the timing of the special election. [UPDATE: See this post which shows that this is not quite right.]

Anyway, subject to additional complications I haven't thought of, that's likely how things would go: expulsion, temporary appointment, special election.

Posted by Rick Hasen at November 5, 2008 10:19 PM