My August 26, 2009 DailyKos Diary:

"Looking ahead a little after Ted Kennedy's passing"

Timothy Horrigan; August 26, 2009

This is a DailyKos diary I wrote the morning after Ted Kennedy died, with some thoughts about the succession proecedure. Massachusetts unfortunately is one of the few states (maybe the only state) which does not allow the Governor to make an interim Senate appointment. The legislature passed a law before the 2004 election to prevent Governor Mitt Romney to appoint a Republican to fill President-elect (ha! ha!) John Kerry's Senate seat with a Republican.

I forgot to look up the exact law (Massachusetts General Laws: Chapter 54: Section 140. "Senators and representatives in congress; vacancies") before I mouthed off here. I thought Governor Deval Patrick could call an election any time he wanted, and I speculate that November 3, 2009 would be a good day. That is when municipal elections will be held. The law actually says the special election "shall not be more than 160 nor less than 145 days after the date" of Kennedy's death: if I did my arithmetic right, this means the election has to be sometime between January 17 and February 1, 2010. If the election was on Tuesday (which is not an absolute requirement) the election would be either January 19 or January 26, 2010. The parties would choose nominees at convention, although other candidates could file nominating petitions. (If he had died after April 10, 2010, the election would have just followed the usual general election schedule.)

No one, aside from the few Republicans left in Massachusetts and (for reasons which are unclear) Senate President Therese Murray, wants to wait that long. There is a move afoot to change the law. Senator Kennedy himself was lobbying for such a law a few days before he died. Aside from the fact that getting anything done on Beacon Hill is always difficult, there are a couple of special complications. First, the state legislature was not in session when Kennedy died Secondly, this would be viewed by some as a retroactive law (although it seems to me that this is not a retroactive law since the vacancy won't go away by itself. This vacancy will continue to exist until an election or appointment is made.)

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• or:

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"Looking ahead a little after Ted Kennedy's passing"

On August 22nd, I commented on a thread about the process of choosing a successor to Senator Ted Kennedy, and I said that the point was moot because "Sen. Kennedy is very much alive at the moment." Sadly, that moment has now passed.

The constitution (2nd paragraph of Amendment XVII) says:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

So, according to Amendment XVII, Massachusetts Governor Patrick must schedule a new election, although there is no set timeline for when he has to do so.  And, the legislature can— but does not have to— make a law allowing the Governor to appoint a replacement.

Currently, Massachusetts is one of the few states where the governor is not empowered to make a temporary Senate appointment to fill the seat till the next election.  A few days before he died, Sen. Kennedy reportedly sent the Massachusetts Speaker of the House and State Senate President a letter urging them to change the law. (Both houses of the state legislature are heavily Democratic: 143-16 in the House and 35-5 in the Senate.)

The current law requires the Governor to schedule an election within five months of Kennedy's passing, i.e., before January 25, 2010.

The next regularly scheduled statewide election is not till September 2010 (primary election day.)  Municipalities who are organized as Cities have a uniform Municipal Election Day: November 3, 2009.  (There are several municipalities, e.g., the Town of Newton, which call themselves Towns but actually operate as Cities.  And towns which are organized as Towns can have their town meetings and elections whenever they want: most have them in the late winter or early spring.)

So, November 3rd would be the logical date for a special election.  But logic doesn't always rule in politics, especially not Massachusetts politics.

Kennedy was really only seriously challenged once in his long career, by Mitt Romney in 1994.  The GOP put up joke candidates in 2000 & 2006, just to fill the spot on the ballot. But the Republicans have had some success at the statewide level in the Bay State: they held the governor's office from 1991 to 2007.  If Romney or someone of his national stature runs, it could be an interesting race.  

(The author is from New Hampshire, but he worked on Beacon Hill for for Mike Dukakis for a few months in 1989.)

See Also:

• August 22 Boston Globe article

• August 26 Boston Globe article

• My novel the The Forgotten Liars

• An excerpt from my novel set during the 1980 Presidential campaign

 October 7, 2009: The Massachusetts legislature did change the law back the way it used to be, and former Denocratic National Committee chair Paul Kirk was appointed Senator by Governor Deval Patrick.

The primary will be December 8, 2009, followed by a general election on January 19, 2009. One small oddity of the election timetable is that a Senate candidate is stuck with whatever party afiliation you had on August 5, 2009 (back when Sen. Kennedy was still alive.) There is an exception for newly enrolled voters, and one fringe candidate is apparently using that loophole: Jean Anne Kennedy-Windsor (who rather dubiously claims to be the illegitimate daughter of Kathleen "Kick" Kennedy and King George VI.) ran for the Michigan State House of Representatives in 2008 (and was a serious enough candidate to get the Democratic nomination in a heavily Republican district.)

Candidates:

Martha Coakley, Attorney General

She is probably most famous for her many years of service in the Middlesex County District Attorney's office (including 8 years as the DA.) This is the most populous county in the state, and it has more than its share of sensational murder cases. She prosecuted several of those murders, such as the "Nanny Murder" and the "Entwistle Murders."

• Senate campaign web site

• Martha Coakley's Twitter tweets

Michael Capuano, U.S. Representative

He represents his hometown of Somerville, along with Cambridge, Chelsea and Charlestown— and most of Boston. A long line of legendary figures have filled this seat: e.g., Daniel Webster, Edward Everett (who made a bombastic two-hour keynote speech just before Lincoln's Gettysburg Address), James Michael Curley and Tip O'Neill— along with Ted Kennedy's nephew (Joe Kennedy), brother (John F. Kennedy) and grandfather (John F. "Honey Fitz" Fitzgerald.)

• Senate campaign web site

• House web site

Stephen Pagliuca, Rich Dude

He used to be one of Mitt Romney's business partners at Bain Capital, but he is running as a Democrat. He is also a co-owner of the Boston Celtics.

• Senate campaign web site

Alan Khazei, Good-Deed Doer

Tens of thousands of people in my home state of New Hampshire moved north from Massachusetts. Many of them say they "fled" Massachusetts, even though it is actually not such a bad place. Alan Khazei (much like my sister Ellie) fled in the opposite direction: he grew up in Bedford, New Hampshire and moved to Massachusetts. He married one of my fellow Dukakis alumni: Vanessa Kirsch. I remember her; I don't remember him. He is the founder of Boston's City Year (which spread to 18 other cities and which was also the inspiration for Americorps) and more recently the founder of Service Nation.

• Senate campaign web site

• Service Nation web site

• "Dept. of Inspired Ideas: Walk to School Month." (A great idea, although it shows the limitations of his approach to things. Apparently we can't just let kids walk to school: we need a complicated program, involving lots of small grants and pilot projects, all adminstered piecemeal by ServiceNation and its affiliates. Today's kids need to be trained how to walk safely before we can let them start walking. I think we even need to tell these kids to alternate their left and right feet and to avoid falling over.)

Jean Anne Kennedy-Windsor

Ted's widow Victoria Reggie Kennedy didn't want to run; Ted's nephew Joe Kennedy didn't want to run; so Ted 's niece stepped in. Well, she says she 's his niece: she claims to be the illegitimate daughter of King George VI of England and Kathleen "Kick" Kennedy. She ran for the Michigan State House of Representatives in 2008 as a Democrat from a conservative district which is dominated by Hillsdale College and got 33% of the vote. The law merely requires that she be a resident of Massachusetts when she takes office.

• 2008 Michigan 58^th House District campaign site

Scott Brown, State Senator

Being a Republican in the Massachusetts state legislature must be tough, but at least you have a good chance of getting a leadership post. Scott Brown is one of 5 Republicans in the 40-person state Senate, and he gets to be the Assistant Minority Whip. (On session days, he gets to whip Sen. Michael R. Knapnik— the one Republican who is not in the leadership— into line.)

• U.S. Senate campaign web site

• State Senate campaign web site

• February 16, 2007 Wonkette blog post about Brown