The Washington Times - January 17, 2010, 02:57PM

Although there will be at least one delay in seating Republican Scott Brown as Massachusetts senator if he wins the special election on Tuesday, Republicans say that won’t buy time for the sitting appointed Democratic Sen. Paul Kirk to vote for health care legislation.

Massachusetts Secretary of State William F. Gavin has already said clerks will need to wait until 10 days after the election to count absentee ballots before Mr. Brown or Democratic candidate Martha Coakley can be certified as the new senator. If Mr. Brown — who has pledged to be the critical 41st vote to block “Obamacare” — wins the race, Democrats could push a final vote on health care into that 10-day window so that Mr. Kirk can vote for the bill, thus depriving Mr. Brown of the opportunity to kill it.

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Democrats say Mr. Kirk should serve until the new senator is “sworn in,” but the GOP would likely challenge that because of a portion of the state law says the appointed senator, Mr. Kirk, can remain a senator only “until election and qualification of the person duly elected to fill the vacancy.”

That means, according to the GOP, Mr. Kirk cannot function as a senator, or vote for health care legislation, after a “qualified” person — such as Mr. Brown, who meets all the residential, age and citizenship requirements — wins the election Tuesday.

A leading Republican lawyer who has been studying Massachusetts state law tells The Washington Times, “As we read the statute at the time the election closes on Tuesday, one of those two candidates will be elected although we may not have the results for awhile.”

The GOP lawyer preferred to speak on background concerning any post-election activities in advance of Tuesday, explaining that any future actions would be based solely on the outcome of that race.

“The supposition that Sen. Kirk can linger in the seat and continue voting for as long as the certification takes is at least questionable, if not wrong,” the lawyer added.

For his part, Mr. Kirk has said he plans on serving until a new senator is “sworn in.”

“Senator Kirk, in accordance with the law, will serve until the winner of the election is certified and sworn into office,” Mr. Kirk’s spokesman Keith Maley said in a statement.

Republicans are also fearful Democrats would find other ways to delay the certification process in an effort to buy Mr. Kirk more time in the Senate if needed.

Aides to Senate Majority Leader Harry Reid, Nevada Democrat, have said a new senator cannot be seated until the winner is certified by his state and Vice President Joe Biden is “available” to swear him in.

But the GOP lawyer disputed that assertion, calling the notion “flatly incorrect” and stating that other officials, such as the Secretary of the Senate, are also able to swear a new senator into the chamber.