Legal teams plotting courses for MA special election

Matthew Mosk at ABC’s Blotter blog went behind the MA special election scenes, only to find a very busy group of lawyers for both candidates. With what is anticipated to be a close race, and high stakes, both sides are compiling legal arguments to accommodate for any result.

Both sides are going to be ready for a fight,” said one election lawyer involved in the preparations, who discussed the effort on the condition he not be named.

Brian McNiff, a spokesman for Secretary of the Commonwealth William Francis Galvin, who is in charge of elections in Massachusetts, said attorneys in his office have been fielding a lot of calls from the two sides in recent days.

The Democrats’ chief concern is being prepared to try and hold the seat if the outcome is close. Recounts are much easier to mount if the margin of victory is less than half of one percent, according to state election rules.

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Should Brown prevail by a sizeable margin, Democrats could still slow the process enough to prevent him from being seated in time for a healthcare vote, election law experts said.

Brown would have to be both certified the winner and formally seated in the Senate before he would be eligible to cast a vote. Both steps are overseen by Democrats.

The Democratic Senatorial Campaign Committee isn’t playing games with Coakley’s defense. Lead attorney is the veteran of the mother of all legal challenges in recent memory, Marc Elias. Elias is the Perkins Coie attorney who oversaw the six month legal challenge that successfully catapulted a losing Franken to his eventual Senate seat. His firm, Perkins Coie, should also be a familiar name for those that remember Thomas Daniel, oft used investigator of many Palin complaints while Governor of Alaska.

On the other side of the legal boxing ring is Dan Winslow, former presiding justice and appellate justice in Massachusetts Trial Court, and former chief legal counsel to Massachusetts Gov. Mitt Romney. While he has experience in election law, winning a redistricting challenge in the Commonwealth that helped the first Latina to be elected to a state office, he sure hasn’t the high profile of Elias. And depending on what aid the Republican Senatorial Campaign Committee is prepared to offer financially, the coffers are not likely as deep either.

Being local talent, Winslow is also personally acquainted with Coakley.

Timing is everything on the MA special election. Tho the vote will be held the day before the Senate convenes for the new session on Jan 20th, MA election law cannot certify the election results before 5pm the 15th day following the election… 10 days to allow for absentee ballots and overseas servicement, and five for sending on the filings. At that point, the ballots go to the Governor’s Counsel where, with five councillors, will undergo examination. This group meets once a week, on Wednesdays only.

The Governor, in the presence of the councillors, will then either issue summons for questions, or issue certification.

Thus, if the election had no challenges, the earliest date of certification by Gov. Deval Patrick would be Wednesday, Feb 3rd calendar days. The path to a healthcare vote is not so quick and easy. The back room compilation of the House and Senate bills needs to be sent on to the CBO for analysis… something unlikely to happen in a manner of days for a sizeable and altered document. Especially when you add the still raging debate over of union special interest tax exemption. Slicing and dicing into what was considered the bills’ largest revenue maker is going to make for some very different cost numbers.

No we know why Obama/Pelosi/Reid and chums were working day and night to get the back door bill prepared for the opening day of Congress… it’s a race against time, and time is of the essence.

The Commonwealth’s SOS, William Francis Galvin, and his mouthpiece, Brian McNiff, say both candidates’ attorneys have been burning up the phone lines with questions. The office has assured that they would not be “…holding on to this material.” Indeed, with national scrutiny on the election results, Galvin – a Democrat himself – must be astutely aware of the bad press the party can receive if they are seen to drag their feet unnecessarily.

In the event of a Coakley loss, the Dems will seek to slow the certification process. The most obvious is a recount. But there must be a margin of higher than 1/2% per law in order for state wide recount requests not to be rendered void. Another playbook trick is to question legitimacy of votes… a Marc Elias special talent, as we’ve seen before.

Another unknown is that there is no time mandate for Governor Patrick to certify the results, in the event there is a substantial margin win by Brown. This is the same Governor who willingly aided a last minute rule change in election law in order to appoint a replacement to Ted Kennedy. Even with the legislative amendment, Patrick still had to usurp a time rule and label filling the vacant Senate seat “an emergency”.

Oddly enough, it just may be the last minute rule dancing that proves the downfall of a guaranteed 60th healthcare vote.

The Weekly Standard’s Fred Barnes’ notes that Brown’s status as a winner isn’t the question… it’s the status of temporary appointee, Sen. Paul Kirk. And according to Republican attorneys’ interpretation of amended Section 140 of chapter 54 of the General Laws, certification isn’t a requirement to negate Kirk’s appointment status as of election day.

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.

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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.

Using the GOP lawyers’ interpretation, either a Coakley *or* Brown win on election day puts Kirk’s voting status to bed by Jan 20th. Interesting argument… and certainly reading the amendment language, plausible.

But then, the Commonwealth has already proven themselves quite willing to remake and bend the rules when their will is threatened. What will remain to be seen is if they can halt Kirk’s voting status, while dealing with the almost guaranteed assault by Marc Elias and Coakley in the event of a loss.