Regardless of Who Wins, Sen. Paul Kirk Can't Vote After Tuesday

This is interesting. According to Massachusetts law (as interpreted by GOP lawyers) Sen. Paul Kirk's days as a voting member of the Senate will end with the election on Tuesday regardless of who wins:

Appointed Senator Paul Kirk will lose his vote in the Senate after Tuesday’s election in Massachusetts of a new senator and cannot be the 60th vote for Democratic health care legislation, according to Republican attorneys.

Kirk has vowed to vote for the Democratic bill even if Republican Scott Brown is elected but not yet certified by state officials and officially seated in the Senate. Kirk’s vote is crucial because without the 60 votes necessary to stop a Republican filibuster, the bill will be defeated.

This would be a devastating loss for President Obama and congressional Democrats. The bill, dubbed ObamaCare, is the centerpiece of the president’s agenda. Brown has campaigned on becoming the 41st vote against ObamaCare.

But in the days after the election, it is Kirk’s status that matters, not Brown’s. Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy.” The vacancy occurred when Senator Edward Kennedy died in August. Kirk was picked as interim senator by Governor Deval Patrick.

Democrats in Massachusetts have talked about delaying Brown’s “certification,” should he defeat Democrat Martha Coakley on Tuesday. Their aim would be to allow Kirk to remain in the Senate and vote the health care bill.

But based on Massachusetts law, Senate precedent, and the U.S. Constitution, Republican attorneys said Kirk will no longer be a senator after election day, period. Brown meets the age, citizenship, and residency requirements in the Constitution to qualify for the Senate. “Qualification” does not require state “certification,” the lawyers said.

An appointed senator’s right to vote is not dependent on whether his successor has been certified, the lawyers said. In Massachusetts, the election of a senator must be certified by the governor, the governor’s council, and the secretary of state – all of them Democrats.

You know there's going to be a fight over that if the race is close. And given the way Democrats love to cheat, if it's too close don't be surprised to see another Minnesota in which the Republican wins on election day only to have more votes for the Dem "discovered" in the recount.

Scott Brown needs a decisive win on Tuesday to end all of this nonsense.