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 wouldnt buy time for Sen. Paul Kirk, the sitting appointed Democratic senator, 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. And, 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 and thus, deprive Mr. Brown the opportunity to kill it.
Democrats say Mr. Kirk should serve until the new senator is "sworn in" but the GOP would likely challenge that because 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, like Mr. Brown who meets all the residential, age and citizenship requirements, wins the election on 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 a while."
The GOP lawyer preferred to speak on background concerning any postelection activities in advance of Tuesday explaining that any future actions would be based solely on the outcome of that race.
"The supposition that Senator 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 has 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 Joseph R. Biden Jr. is "available" to swear him in.
But the Republican 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.
The Supreme Court added five cases to its docket Friday, including one that will examine whether the names of voters who sign a petition against gay marriage can be made public.
Protect Marriage Washington, a Washington-state group that opposes same-sex marriage, solicited the names of more than 138,500 voters in an unsuccessful effort, Referendum 71, to overturn a law that grants same-sex couples domestic-partnership rights.
Gay rights advocates made a play to disclose those names publicly before the Nov. 3 vote to overturn the law, but signers said they feared retribution if their names were public.
A district court issued an order in September prohibiting the disclosure, which was voided by an Oct. 15 order from the 9th U.S. Circuit Court of Appeals that permitted the disclosure. The Supreme Court then intervened Oct. 20 and said the names could not be released until it ruled on the matter.
James Bopp Jr., the lead counsel for Protect Marriage Washington, is pleased the Supreme Court will now hear the case.
"No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process," he said in a statement. "The First Amendment protects citizens from being required to disclose their identity when they are engaged in political speech. The Supreme Court seemed to see the importance of hearing this case prior to the November 2009 elections when it stayed the release of the names at that time, and we look forward to their review of the case."
This is the second time the Supreme Court has recently examined issues related to gay marriage and transparency.
Last week, it blocked a San Francisco court from broadcasting a federal trial over Proposition 8, a California ballot measure that banned gay marriage.
• Amanda Carpenter can be reached at firstname.lastname@example.org.