I do some election law stuff here in New York. I even teach CLE (continuing legal education) on it. I am NOT, however, admitted in Massachusetts. So, if anybody out there who practices election law in Massachusetts would like to weigh-in in the comment threads, I have an idea that might solve a problem for Senator Kennedy. Let me know if this is crack-brained or not.

In 2004, the Mass Legislature passed a law that stripped the governor of the ability to appoint an interim successor pending the outcome of a special election should a vacancy occur in the office of US Senator. The Boston Globe is reporting that Ted Kennedy has written to the Governor and Legislature asking them to change that law to allow an interim replacement. There is apparently some reluctance to do that, because it would seem too partisan.

The law provides that a special election must be called no less that 145 days and not more than 160 days after the vacancy occurs, which would appear to create a 5 month gap in representation. And for sudden, unexpected vacancies, that would still be true.

BUT for a PLANNED vacancy that might not be true. I parsed the statute, and it says that a letter announcing a resignation that will not become effective creates a vacancy on the day of the letter.

Filing a letter of resignation creates a vacancy under this section, even if the resignation is not effective until some later time, but the date of the election to fill a vacancy under this section shall be after the resignation is effective.

So, Senator Kennedy could, in theory, send a letter TODAY announcing his resignation to become effective 144 days from now. "[T]he he governor [could] immediately cause precepts to be issued to the aldermen in every city and the selectmen in every town in the district, directing them to call an election on the day appointed in the precepts for the election of such senator or representative." And they could set the date for day 145, 146, or thereabouts. The campaigns could begin and the Special Election could proceed in the normal way, with little or no gap in representation.

Does anybody see a hole in this theory? The beauty part for Senator Kennedy, is he does not have to spend a lot of valuable time waiting for the Massachusetts Legislature to draft a bill, debate a bill, etc. The Senator would hold the keys to this process in his own hands and could dictate his own timing, albeit with a 5 month projection.

If my theory is correct, I hope this gives him some peace of mind.

Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.