Don't Count On The Senate to Throw Out Alaska's Ted Stevens

By Scott Rafferty, AlterNet. Posted November 13, 2008.

Senate Majority Leader Harry Reid (D-NV) chose his words carefully when he said that Sen. Ted Stevens (R-AK) "could not serve" in the next Congress because of his recent felony conviction on corruption charges.

The most critical part of that Congress will be the first 100 days. Senate Republicans have assumed that, if re-elected, Stevens would vote until he his conviction was affirmed and he resigned (or was expelled), whereupon Alaska’s Republican Governor, Sarah Palin, would immediately appoint a successor. Either way, there would be one more reliable Republican vote to block the new President's agenda.

The events of the past week call every one of those assumptions into question -- and point to a series of painful ordeals for the disgraced Senator.

On Election Day, Steven's 48 percent outperformed every poll for the last 18 months. Why? Begich's pollster admits that his overconfident prediction of a 7 percent lead, coupled with TV commentators predicting an Obama victory long before the Alaska polls closed, may have depressed Democratic turnout. But an alternative explanation is that Stevens actually persuaded the voters that he was an innocent victim of prosecutorial abuse -- staging a comeback among late-voting absentees and Election-Day voters.

Should the Senate allow such an election to stand? If the appeal sustains the conviction, Stevens may have altered the result by misleading voters.

By Monday, Democratic challenger Mark Begich may moot these problems by winning a six-year term outright. Yesterday, Alaska counted the 50,000 absentee ballots that it received on or before election day, changing Stevens' lead of slightly more than 3,000 votes to a lead by Begich of 814 votes.

This was not altogether a surprise. Most timely absentee ballots come from the Alaskan bush. While Stevens has historically won almost every precinct, the closer 2004 U.S. Senate race between the Republican incumbent, Lisa Murkowski, and Tom Knowles, a Democratic former governor, showed that rural Alaska precincts are more Democratic than the Mat-Su Valley (home to Palin) and South Anchorage (home to Stevens). Begich worked hard to get out the early vote while Stevens was still in court. Indeed, many of these ballots were cast before October 27, when Stevens was convicted.

What is a surprise is that the remaining 25,000 absentee ballots, postmarked before Election Day (but received later) are almost evenly spread between Democratic and Republican suburban districts. In part, this is because they include votes from military overseas. But the large number of late absentee votes may also reflect a Stevens comeback, as voters bought into his claims of innocence. Fifteen thousand "questionable" ballots are also uncannily even in their division between Democratic and Republican territory. So, the Begich camp can only be cautiously optimistic that it will retain its lead when Alaska’s Elections Division completes its count.

The state election division is rushing the vote count to inform the U.S. Senate Republican Conference, which meets next Tuesday and will almost certainly strip Stevens of all his committee assignments in the lame duck session. But they still assume that he can vote, now and in the 111th Congress, until he resigns or is expelled.

If Stevens wins the initial count, he still faces a long road. A four-member state review board, nominated by Democratic and Republican state parties, will certify the count on December 2, whereupon a recount may be demanded. The recount will then be reviewed by the State Supreme Court. And if the losing candidate claims that the apparent victor engaged in "corrupt practices" or "malconduct," that can be an "election contest" in the trial court, followed by appeals. No such allegations have emerged yet, but they could.

The U.S. Senate is the ultimate judge of its members' election. In the last contest, against Louisiana Democrat Mary Landrieu in 1996, the Republicans agreed that she could serve pending an investigation into alleged fraud, which exploded when the Rules Committee discovered that the key witness had been paid to testify. But the normal practice is for the Vice President, as president of the Senate, to ask the contestee to "step aside" when the oath is administered. In contrast to an expulsion, an election contest requires only a simple majority to require a new election, which may be held on such terms as the Senate specifies.

Of course, if Begich wins at any stage of the state proceedings, he will be seated (probably without question). But Stevens cannot be so confident.

A Senate election contest could involve ballot fraud or miscalculation -- or the Rules Committee could investigate a more general claim that Stevens misled Alaska voters. If the margin is close, the Senate could be drawn into an examination of individual ballots -- especially if the Alaska court proceedings were incomplete or controversial. Alaska is one of the only states to permit absentee voting by fax. The Elections Division distributed several thousand fax ballots during the final days of the campaign, and they have already been counted. If multiple ballots were faxed from the same time and place, and for the same candidate, counting them could violate the Alaska Constitution, which requires that voting be secret.

See more stories tagged with: harry reid, ted stevens, sarah palin, mark begich, 2008 alaska senate race, senate expulsion, filibuster-proof majority, senate rules committee, alaska supreme court, alaska constitution, scott rafferty

Scott Rafferty is a Washington-based lawyer who has specialized in election law for many political campaigns.

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