Stevens could keep seat in Senate

Stevens could keep seat in Senate; Tom Kizzia; The Anchorage Daily News; October 28th, 2008.

Can Sen. Ted Stevens still run for office after being convicted by a jury on Monday? Yes.

Can a re-elected Stevens keep his seat in the Senate if he loses on appeal? Doubtful, but that would be up to his fellow senators.

If Stevens were to resign from his seat or be expelled, how would a replacement be chosen?

Nobody can say for sure.

That's because Alaska's law on senatorial succession was changed twice in 2004 -- once by the Legislature, and once by ballot initiative. Both laws call for a special election within 60 to 90 days of the vacancy. But they disagree on whether the governor appoints an interim senator in the meantime.

The Alaska Supreme Court would ultimately have to decide which law the state follows.

There's nothing in the U.S. Constitution that says a politician convicted of a crime can't run for re-election to the Senate.

Assistant Attorney Gen. David Jones said Monday the only qualifications for Congress are those spelled out in the U.S. Constitution -- basically, matters of residency. He cited a report by the Congressional Research Service saying no other state or federal requirements can be imposed. That includes any effort to bar someone convicted of a felony, the report said.

The Senate gets to set its own rules about who can serve, however. It can expel a member by a two-thirds vote. Such a vote is unlikely while a criminal case is on appeal, according to the Senate historian's office. In fact, such a vote would be unprecedented. Four senators have been convicted of crimes: two resigned, one died, and one saw his term expire before an expulsion vote could be held.

Last week, two outspoken Stevens defenders, Sen. Lisa Murkowski, R-Alaska, and Sen. Kay Bailey Hutchison, R-Texas, predicted the Senate would surely seat Stevens if he lost his jury trial but won re-election while appealing the verdict. They even spelled out several causes they considered fruitful for an appeal: failure to move his trial to Alaska or prosecutorial misconduct.

If Stevens loses the appeal and his seat is vacated, his successor is chosen by rules set by the state of Alaska.

Each state gets to set its own rules for filling vacancies, according to the 17th Amendment to the U.S. Constitution, ratified in 1913. That amendment said senators are to be elected by popular vote, rather than by the state legislatures. It's up to individual states to decide whether temporary appointments can be made when a vacancy occurs.

Alaska's rules of succession have been changed again and again, each time to benefit the majority party in the Legislature.

Before 1968, the rule was that a newly appointed senator had to be from the same party as the deceased or departing senator. But when Democrat Bob Bartlett died that year, Republican Gov. Wally Hickel wanted to appoint a Republican, so the Legislature repealed the rule. The appointee was Stevens, who later won a special election in 1970 and has held the seat since.

In 1998, the Legislature put the same-party rule back, ensuring that Democratic Gov. Tony Knowles would have to appoint a Republican if the Stevens or Frank Murkowski seats came open.

In 2002, the Republican Legislature changed the law again so Knowles could not name Murkowski's successor if Murkowski won the governor's race.

Murkowski won and got to name his successor. He chose his daughter, Lisa, touching off a furor. By 2004, with signatures rolling in on an initiative petition, the Legislature changed the law to require a prompt special election unless a vacancy occurs within 60 days of a regular election. But the Legislature allowed the governor to appoint someone to keep the seat warm until that election.

Democrats backing Proposition 4 in 2004 objected to any appointment at all. They said an interim appointment gave the chosen successor an incumbent's edge in the ultimate election.

Opponents of the measure said waiting to fill a U.S. Senate seat would leave Alaska without full representation for months. And they argued the backers were being a touch devilish, reminding voters of the nepotism issue in Lisa Murkowski's first, and ultimately successful, race for the Senate.

The initiative backers, who called themselves Trust the People, had to win a ruling from the state Supreme Court to get on the 2004 ballot. The Murkowski administration argued the new state law was essentially the same, making the ballot measure redundant. The justices said there was an essential difference -- whether a temporary senator gets appointed during those 60 to 90 days.

Since the initiative had yet to pass, however, the Supreme Court declined to rule on an important secondary issue: whether the initiative supplanted the state law. State officials at the time argued that the 17th Amendment gave the decision about succession to legislatures, not to a public vote. But the issue was never settled.

The case was known as State of Alaska v. Trust the People.

Jones said the Department of Law has not drawn up a legal opinion on the matter.

Bottom line: if the Senate seat were to open up, voters would get to choose a new senator in a special election within 90 days. In the meantime, it would be up to Gov. Sarah Palin to decide whether to trigger a quick constitutional test by appointing an interim senator.

Unless, that is, Palin has been elected vice president. In which case the decision would be up to her successor, Lt. Gov. Sean Parnell.

Comment: I can't speak to Alaska law, but I want to point how Murkowski and Hutchison are ready to defend this crook, and certainly they're not alone; yet the Republican Party is dumbstruck about the rise of Obama.