Some Republican election lawyers argue no. Over at the Weekly Standard, Fred Barnes pours cold water on the idea that health care could pass even if Republican Scott Brown is elected in Massachusetts by delaying Brown’s certification and letting acting Sen. Paul Kirk vote for Obamacare:
But in the days after the election, it is Kirk’s status that matters, not Brown’s. Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy.” The vacancy occurred when Senator Edward Kennedy died in August. Kirk was picked as interim senator by Governor Deval Patrick…
But based on Massachusetts law, Senate precedent, and the U.S. Constitution, Republican attorneys said Kirk will no longer be a senator after election day, period. Brown meets the age, citizenship, and residency requirements in the Constitution to qualify for the Senate. “Qualification” does not require state “certification,” the lawyers said.
An appointed senator’s right to vote is not dependent on whether his successor has been certified, the lawyers said. In Massachusetts, the election of a senator must be certified by the governor, the governor’s council, and the secretary of state – all of them Democrats.
If Brown wins narrowly and a recount is being conducted, Democratic lawyers might claim that he hasn’t been “duly elected.” Republican attorneys believe, however, that a candidate has actually been elected, though it won’t be clear who that is until the recount is completed. In Massachusetts, a recount can occur if the margin of victory is less than half a percent of the total vote.
Even if we don’t know who the duly elected senator from Massachusetts is on Tuesday night, we will know that there is a duly elected senator — and it will not be Paul Kirk. Though it seems to be that the “qualification fo the person duly elected” could still be a sticking point for Democratic election lawyers arguing for the other side.