Palin Faces Rough Road To Stevens' Senate Seat

By John O'Hara, AlterNet. Posted November 10, 2008.

There seems to be quite a bit of confusion on what will happen to Sen. Ted Stevens' seat if he is forced to step down, so I thought I would remind you of the sequence of events in Alaska in 2004.

You may remember that Alaska's U.S. Senator, Frank Murkowski, a Republican, appointed his daughter, Lisa Murkowski, a state representative in Alasak's legislature at the time, to fill out the remainder of his U.S. senate term after Frank Murkowski was elected as Alaska's governor in 2002.

Here's what happened next:

• In 2004, "Trust the People" submitted an initiative to change the manner in which Senate vacancy would be filled.


• The Lieutenant Governor refused to certify the initiative on 17th Amendment grounds. Trust the People filled suit.


• The Superior Court ruled that the constitutionality of an initiative should not be considered unless and until the voters enact it and ordered the Lieutenant Governor to certify it. He did and it was placed on the ballot.


• The state appealed the Superior Court decision.


• On June 5, HB 414, 3An act relating to filling a vacancy in the office of United States Senators was enacted through the legislative process.


• On June 15, the Lieutenant Governor removed the initiative from the ballot on the grounds that the initiative and the new law were substantially the same and the state moved to dismiss its appeal as moot.


• Trust the People filled a new action. The Supreme Court added the substantial sameness question to the constitutional issue and heard arguments.


• In State of Alaska vs. Trust the People the Supreme Court ordered on August 20 that HB 414 and the initiative were not substantially similar because "eliminating gubernatorial appointments from the process of filling vacancies is a primary objective of the initiative." They also ordered that the Superior Court was correct in its decision on the constitutionality question because "whether the Seventeenth Amendment permits or precludes lawmaking by initiative with respect to filling senate vacancies presents an open and fairly debatable constitutional question." A full opinion was subsequently released.


• The question that appeared on the ballot and was approved by 55.6% of the voters clearly stated it was repealing only the Governor's appointment power. It read:

This measure would repeal state law by which the Governor makes a temporary appointment of a person to fill a U.S. Senate vacancy until a special or regular election can be held. Under existing law the seat remains vacant until an appointment is made. Under the initiative the seat would remain vacant until the election is certified and the senate meets. Existing law provides that a special election will be held within 60 to 90 days to fill a vacancy unless the vacancy occurs within 60 days of the primary election for that seat. This initiative does not change that provision.

If Senator Stevens leaves office, will Gov. Sarah Palin challenge the initiative by appointing a temporary Senator? I doubt it, but if she does the constitutional question will undoubtedly be litigated.

Even if the courts do not stay the appointment pending the outcome, the Senate would likely refuse to seat the temporary appointee until the case is decided. It is possible that the courts might defer to the Senate in its role as "judge of elections, returns and qualifications of its own members."

Regarding the Senate's historic reluctance to expel a member reelected after a conviction, I have no idea on what they based their opinion, since no member of the Senate convicted of a crime has ever been re-elected. Sen. Joseph McCarthy (R-WS) who was "condemned" by the Senate and was not reelected afterward.

The official Senate site has this to say:

In the entire course of the Senate's history, only four members have been convicted of crimes. They were: Joseph R. Burton (1905), John Hipple Mitchell (1905), Truman H. Newberry (1920), and Harrison Williams (1981). Newberry's conviction was later overturned. Mitchell died. Burton, Newberry, and Williams resigned before the Senate could act on their expulsion.

Whoever wrote this certainly seems to anticipate expulsion as a sequella to criminal conviction.

              

See more stories tagged with: ted stevens, sarah palin, senator palin, u.s. senate succession, alaska law, frank murkowski, lisa murkowski

John O'Hara is a lawyer with an interest in election and constitutional law.

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