- The Washington Times - Friday, November 10, 2000

Missouri Republicans hold a substantial constitutional claim to upsetting the scheduled Jan. 4, 2000, appointment of Mrs. Jean Carnahan, wife of the late Democratic Gov. Mel Carnahan, to the U.S. Senate by the incumbent Missouri governor, Roger Wilson. But Republicans have wisely refrained from such constitutional brinkmanship, opting instead to play by Queensbury Rules. Such restraint is a centerpiece of our marvelous democratic dispensation, and deserves applause.

The constitutional issue stems from the hotly contested race between incumbent Republican Sen. John D. Ashcroft and highly popular Gov. Mel Carnahan. Enjoying a small edge, Carnahan died in a plane crash Oct. 16, too late to remove his name from the ballot under Missouri law. Mr. Wilson immediately succeeded to the Missouri governorship, and announced an intent to appoint Mrs. Carnahan to the Senate if the voters chose her deceased husband on Nov. 7. The voters did so, by a 2 percent margin over Mr. Ashcroft. But were the votes cast for a dead man constitutionally valid?

Article I, section 3, clause 3 requires that a senator, "when elected, be an inhabitant of that state for which he shall be chosen." In common parlance, the dead do not inhabit any state. Thus, Harry Truman is not thought to inhabit Missouri, nor Abraham Lincoln Illinois. And the two would not be constitutionally eligible candidates for the Senate.

Missouri state law directly addresses the Carnahan situation. If a dead candidate wins the popular vote, says Missouri, then a vacancy is created in the office at stake. It is to be filled by a new election as prescribed by the state legislature. According to state law, Carnahan's victory opened a vacancy in Missouri's U.S. Senate seat whose term begins next Jan. 4.

Now Mrs. Carnahan enters the drama. The 17th Amendment to the U.S. Constitution declares that, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies," and, before such elections are held, "to make temporary appointments." It would seem, therefore, that Gov. Wilson's scheduled temporary appointment of Jean Carnahan to the Senate, with an open election to the seat under Missouri law slated for two years hence, is constitutionally irreproachable.

But things are not so simple. Article I, section 5 makes the Senate, like the House, "the judge of the elections, returns and qualifications of its own members." A Republican Senate in the 107th Congress would entertain any Republican challenge to Mrs. Carnahan's constitutional credentials. It might be argued that her temporary appointment is void; that her dead husband's triumph over Mr. Ashcroft did not create a Senate "vacancy" for her to fill because of her late husband's constitutional ineligibility for the office at the time Missourians voted; and, that no matter what Missouri law declares, Article I, section 5 permits the Senate to recognize Mr. Ashcroft as the winner since he attracted a commanding majority of all votes cast for constitutionally eligible contenders. In other words, the Senate is not obligated to accept Missouri's conclusion that Mr. Ashcroft's vote loss to a candidate disqualified from holding office nevertheless created a 17th Amendment Senate vacancy.

That understanding, which seems logically impeccable, is itself troublesome. Suppose the wildly popular Sen. Robert Byrd, West Virginia Democrat, died on the eve of Election Day. His name remained on the West Virginia ballot, and commanded 85 percent of the vote out of sympathy or otherwise. The runner-up candidate attracted but single-digit support. Could the Senate nevertheless award a Senate seat to the latter because the votes for Sen. Byrd were for an ineligible candidate? Wouldn't that stretch to the breaking point our unwritten social compact about what constitutes a democratic election and majority rule?

On the other hand, all sensible constitutional teachings are matters of degree. Sen. Ashcroft enjoyed approximately 48 percent of popular support, and a non-trivial number of votes cast for his deceased opponent may have been more to honor his public life than to champion his wife as senator. It is not self-evident, therefore, that Mr. Ashcroft would have lost to Jean Carnahan in a head-to-head contest. To recognize Mr. Ashcroft as the properly elected senator for Missouri in the peculiar circumstances of the campaign would thus not seem an abandonment of fundamental principles of representative government.

In sum, there is no completely satisfying answer to the constitutional questions presented by Mel Carnahan's tragedy. They are of a type best left in a twilight zone, with nothing definitive and leaving maximum latitude for political discretion partisan compromise.

Moderation and charity are what keep our democracy from shipwrecks.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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