Democracy and Elections

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

Letting the felonious Republican senator languish is another path to a filibuster-proof Democratic majority in the first 100 days.

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.

But Senate precedents also permit a broad investigation into the propriety of the candidate's conduct. The Senate has claimed the right to invalidate elections if the victor made excessive campaign contributions or encouraged racial disenfranchisement. So, it is logical to suggest that an investigation to allow the Rules Committee to investigate what Stevens told voters about his conviction, and to order a redo if his appeal indicates that his protests misled the electorate.

Political Siberia

Both parties have political reasons to prefer an exclusion pending the appeal to an expulsion after the appeal. For the Democrats, it means one less vote against the Obama agenda. For the Republicans, who won't be able to delay a debate on expulsion, it gives their senior member a chance to clear his name. To everyone's relief, it increases the pressure on Stevens to resign, possibly in connection with a midnight pardon by the outgoing president.

The Republicans will learn that their assumption that Palin can appoint a successor is also flawed. The Seventeenth Amendment allows the "legislature" to authorize the governor to appoint a successor. But after Governor Murkowski appointed his daughter to the Senate in 2002, Alaska voters apparently repealed the provision by passing a ballot measure.

The Alaska Constitution appears to authorize initiative voters to act as the "legislature," but the state attorney general claims that this conflicts with the Seventeenth Amendment. The state Supreme Court declined to issue an advisory opinion, so the initiative proponents have promised a lawsuit if the governor attempts an appointment. A special election means another prolonged period during which Alaska has only one Senator, and the Democratic majority is filibuster-proof.

Senators in both parties may ultimately look beyond political considerations and reconsider whether they should attempt to expel a colleague if his criminal actions were known and understood by the people who reelected him. Many legal scholars assume that either House of Congress can expel a member by two-thirds vote for any reason. Politicians won't be so comfortable with the idea of two-thirds able to expel the other one-third. And it raises serious constitutional questions.

In the 18th century, Parliament repeatedly expelled John Wilkes, convicted of seditious libel for opposing the Treaty of Paris. Each time, his constituency reelected him, even while he was in exile. In 1782, just seven years before the constitutional convention, Parliament recognized the error of its ways and expunged the prior expulsions as "violative of the electorate's franchise." Wilkes was a hero in the early American Republic, so it is almost implausible that the framers thought that convicts could be expelled.

The Senate expelled 14 members for supporting the Confederacy during the Civil War, but has never done so since. The Seven-teenth Amendment provides that "each Senator … is elected by the people … for six years; and … shall have one vote," which Stevens will argue repeals the right to expel.

The verdict of history has been harsh on attempted expulsions. The current Senate Majority Leader undoubtedly knows of the proceedings to expel Senator Reed Smoot for being a Mormon in 1907. Twelve years later, expulsion proceedings charged Senator Robert LaFollette with "disloyalty" because he opposed entry into World War I. Other targets of unsuccessful expulsion proceedings, such as Burton Wheeler and Huey Long, have gone on to be heroes in their states.

New Jersey Senator Harrison Williams resigned after his criminal conviction in 1982. Many Democrats and Republicans are undoubtedly hoping for the same outcome. A Rules Committee investigation into Stevens' claims of innocence during the closing days of the 2008 campaign (and their underlying truth as determined on appeal) could give the Senate’s longest-serving Republican time to come to the same conclusion.
Scott Rafferty is a Washington-based lawyer who has specialized in election law for many political campaigns.