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November 13, 2008

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Article 1 section 5:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member."

So, they would allow Senator Hulk Tubes to win the election, be sworn in ... and then promptly vote to expel him from the Senate. This is not debatable in any court.

Perhaps not legally relevant, but there is an interesting British parallel in the 18th-century Wilkes case. John Wilkes, a radical, was elected to parliament in the late 1700s (by a London constituency, IIRC). The appalled House of Commons promptly booted him out, creating a need for a special election. The aggrieved electors promptly voted Wilkes in again. Incensed members of parliament not only booted him out once more, but attempted to disqualify him from further election.

The courts ruled that they were within their rights in refusing to seat him, but NOT in preventing his constituents from voting him in again . . . and again and again, if need be. So the respectable MPs gave up, and Wilkes was seated in the House of Commons. A triumph for democracy.

(I'm acting on the assumption that, even if Stevens wins, most Alaskans are insufficiently familiar with British parliamentary history for this to serve as a practical precedent. Golly I hope I'm right.)

But the more pressing question, if he's about to be a senator... what's the correct pronunciation on Begich?

"...then, I presume, it would be perfectly legitimate, as a constitutional matter, to refuse to a newly-elected senator on racial or religious grounds...."

IANA law professor, but how could that possibly be, in light of Article VI, section 3:

[...] The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
That's as regards religious grounds; I'm not clear that there would be a bar on "racial," grounds, unfortunately, since the 14th Amendment only bars the States.

But what am I missing about Article VI, Section 3, that it wouldn't apply?

I'd hope that Stevens would be promptly expelled. What happens then? Can he run again? What's to keep him from running from prison?

What's to keep him from running from prison?

Nothing.

No, really: there was a hugely popular Boston politician, James Michael Curley by name, who really and truly ran for office from jail:

In 1947, during his last mayoral term, he was convicted for a second time on federal charges of official misconduct, including mail fraud. He spent five months in jail during this term, but still retained a considerable degree of popularity with the working classes. Out of political expediency and because of pressure from the Massachusetts congressional delegation, President Harry Truman pardoned him, enabling his release.

Check out his wikipedia entry. The guy was a legend.

Lets not forget Eugene Debs.

My assumption, given Sarah Palin's remarks about open doors, is that she would run to take Stevens's place.

Thank you, god, for slamming that door in her face.

The Adam">http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=395&invol=486">Adam Clayton Powell case is relevant: the House refused, by a majority vote, to seat him. District and circuit courts declined to act, but the Supreme Court agreed with Levinson: "In judging the qualifications of its members under Art. I, 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution."

The Senate could expel him (by a vote of 66 senators), but according to the decision above, "On several occasions the House has debated whether a member can be expelled for actions taken during a prior Congress and the House's own manual of procedure applicable in the 90th Congress states that "both Houses have distrusted their power to punish in such cases."

All of which seems very sensible to me, however much I may dislike its application in this case. (The fact that the decision was handed down by the Warren court might have our current Supreme court chomping at the bit to reverse, but not, I imagine, when a Democratic congress has just expelled a Republican.)

Sandy is one of those 'constitutional scholars' where, after a while, you start wondering if he's actually READ the thing lately. And I say this as somebody who's fond of, though often exasperated by, him. He frequently has doubts about the constitutionality of things the document is utterly unambiguous about, such as whether somebody unqualified to be President could be VP.

Beg- itch

emphasis is on the leading syllable.

What's to keep him from running from prison?

Guards, watchtowers? Besides, he's an old guy and probably can't run very fast anyway.

@dr ngo:
Yes, Wilkes in fact came from Clarkenwell, a district with a long history of radical politics, and just the place to keep outraging respectability by electing him repeatedly. His statue in Fetter Lane is not far from Samuel Johnson's house, for those with a taste for political contrast.

Was John Wilkes Booth named for the British radical MP, or is that just a coincidence?

I've wondered for a long time why JWB is always referred to by his full name, but idly (i.e., too shiftless to do the reading-around that might resolve the question).

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