Supporters at newly elected Massachusetts Sen. Scott Brown’s victory rally on Tuesday chanted “Seat him now!”—a reaction to gossip that Democrats might force through health care reform before Brown takes office. Senate Majority Leader Harry Reid, meanwhile, issued assurances that Democrats would fill the vacant seat “as soon as the proper paperwork has been received.” How soon is that?
Probably 10 days. To ensure that all overseas ballots have been counted, town clerks in Massachusetts must wait at least 10 days and no more than 15 before delivering a final tally to the secretary of state, William F. Galvin. Massachusetts election law stipulates that Galvin present the results for certification to the governor and “at least five councilors” who “shall examine the copies. They shall tabulate said votes and determine who appear to be elected.” Barring a tight race that necessitates a recount (which isn’t the case here), this is a purely formal process that can take a matter of hours. The next step is for Brown to take the oath of office. This should also take place without delay since, according to a 2003 report from the Congressional Research Service, it’s “prevailing practice” after special elections for the sitting, interim senator’s term to expire immediately.
There’s a chance Brown will make it to Washington even faster. Technically, the president the Senate, Vice President Joe Biden, or a surrogate may only administer the oath of office after the vote has been officially certified (a minimum of 10 days, in this case). But if Galvin writes a letter informing the Senate of the unofficial winner, that chamber could choose to waive its rules. Ironically, after Ted Kennedy won the special election of 1962, the Senate did just that. More recently, in 2007, Galvin wrote such a letter to the House after Democrat Niki Tsongas won a special election in Lowell, Mass., and she, too, was seated before certification.
Between Tuesday’s special election and Brown’s swearing-in, it’s unclear whether the interim senator, Paul Kirk, can still vote. The Congressional Research Service, as noted above, holds that his term expires “immediately” after the special election. And Republican attorneys are arguing that Kirk’s eligibility is not dependent on his successor’s certification—however long that may take. But lawyers for the Democratic Party could argue that the special election isn’t truly over until Massachusetts election law—which requires certification— has been satisfied. If he can’t vote, then Democrats have already lost their filibuster-proof majority.
Whether the Democrats are about to lose or have already lost their 60-vote bloc, it’s still possible for them to pass health care reform quickly. If the house adopts the Senate bill without changing it, both chambers could amend it later through the budget reconciliation process (which requires only a simple majority vote). Of course it’s unclear whether a sufficient number of House Democrats would go along with a contingency plan that’s likely to anger conservative lawmakers and voters.
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