Every time a discussion is started here about Biden’s choice of Vice President, much of the what is discussed centers on Elizabeth Warren’s Senate seat. Just today, kos posted a diary about how Warren would best unite the party, and the comments were overflowing about what would happen should she get the nod. Most commentators simply questioned the process, others stated misinformation, while still others, sadly, denigrated others with their certain knowledge of what would happen. It prompted me to do some research and write a diary that tries to clear up the situation regarding special elections in Massachusetts.
Upfront, though … Disclaimer 1: My first choice for our nominee was Elizabeth Warren. Biden was probably near the bottom. (I’m trying to be unbiased in my presentation of the facts as I understand them, but I’ll be stating my opinions, too.) Disclaimer 2: I’m not from Massachusetts, but from Maryland, where the law is better. Disclaimer 3: I’m not a lawyer.
Please see my update notation at the bottom.
To proceed. In the event of a vacancy in the Senate, Massachusetts law requires a special election to be held on a Tuesday, between 145 days and 160 days from the date of the vacancy, on a date determined by the governor. A primary election is held six weeks prior to that date. Until this special election, the governor makes a temporary appointment to fill the vacancy. However, if the vacancy occurs after April 10 but before June 23 (seventy days prior to the regular primary), the special primary election and special election will be on the same dates as the regular primary election and regular election, which in 2020 are September 1 and November 3, respectively. The winner will serve the remainder of Senator Warren’s term, which ends January 2023. “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.” MGLA Title VIII, Chapter 54, Section 140.
So what does that mean for Biden and Warren and the Senate seat? (Bear in mind I’m not taking into account other Senate elections to be decided on November 3rd, the winners of which will take office on January 3 or thereabouts.)
Scenario 1 A. (This is still a valid scenario so I’m leaving it in this update, but it’s now highly unlikely.) If Biden chooses Warren before June 23rd, she could resign her seat. Governor Charlie Baker appoints a Republican (probably), and the Senate is now split 54R-46D, which is practically no different than 53R-47D. There will be a primary election on September 1st to choose the party nominees, and the new Senator will be elected on November 3. The winner would take office as soon as the results are certified. If the Biden/Warren ticket loses1, she’s a private citizen again. The makeup of the Senate at this point is either 53-47 (if the Democrat wins) or still 54-46 (if the Republican wins).
Scenario 1 B. If Biden chooses Warren before June 23, she could file a letter of resignation, thereby triggering the special election law. However, she can declare her resignation would be effective, say... November 1st. (Because the “date of the election...shall be after the resignation is effective” — meaning the seat has to be empty if it’s being filled by special election.) There will still be a primary election on September 1 to choose the party nominees, and the new Senator will be elected on November 3. On November 1st, Baker could appoint his Republican replacement, but that person would only be in office for a few days or weeks until the newly-elected Senator takes the seat. If the Biden/Warren ticket loses1, she’s a private citizen again.
Scenario 2. If he chooses her after June 23rd, she might as well keep her seat. If we lose1, she’s still Senator until January 3, 2023. If we win, she resigns the Senate, Charlie Baker appoints a Republican (probably), and the special election is scheduled in 145-160 days.
If she resigns the first week of November when the election is called for us, the Republican appointee is in office until the election approximately March 20 - April 5, 2021 (only about 3 months of the new Congress). If she waits to resign until she assumes the Vice Presidency, then the special election would be June 8 - 22, 2021 (5 months of the new Congress). Other resignation dates and similar scenarios are possible, and may be “played” for strategic purposes.
Scenario 3. She could decide not to resign even if the call comes before June 23, but it’s the same outcome as scenario 2.
Scenario 4. She resigns her seat sometime during the campaign after June 23. Our team loses1. She is a private citizen again, and may run against the appointed Republican incumbent in the special election.
The comments in kos’ diary today were all over the place. The idea of losing the Senate seat is “nonsense,” “would never happen,” and someone is “ignorant” to think otherwise. “Baker wouldn’t do that,” he’d appoint a “non-partisan placeholder.” The “Legislature wouldn’t allow it;” they would “pass a new law” to fix the process. “Update your brain.” None of this is helpful. It would be more constructive to stick to the facts, and be smart politically.
If Warren is selected, I think Scenario 1B is preferable. It gives us the best chance of electing a Democrat, and has a Republican in the seat when it hurts us least. So they need to make this decision sooner rather than later. Community member Winston Smith had a good idea in March: Warren resigns files her resignation letter before June 23rd, Joe Kennedy III runs in the primary for her seat instead of challenging Ed Markey for his.
Granted, it is possible for the Legislature to change the law to require the governor to fill a vacancy with someone of the same party as the outgoing Senator. Democrats have a super majority and can override a Baker veto. We have that provision in Maryland law, where there is also a Republican governor and two Democratic Senators. But that wouldn’t affect the special election. And they would have to get on the ball and do it if they’re going to. This matters less in Scenario 1B now, because the appointee will only be in office for a few days or weeks. It would matter more in the other scenarios, or in the future.
The biggest wildcard in all this, and my biggest fear, is Charlie Baker. He won with 67% of the vote in 2018, and has an 80% approval rating. Who’s to say he won’t effectively appoint himself as Senator by resigning the governorship and having new Acting Governor Karyn Polito name him to the seat? Who wins a Senate election between him and Joe Kennedy III, or some other fine Democrat? Or who wins in a Warren vs. Baker matchup under Scenario 4? Not to sound too harsh, but Massachusetts has a lot to answer for by electing Scott Brown and taking away our very short-lived filibuster-proof 60-vote majority in the Senate in 2010. That was devastating. If Elizabeth Warren is residing in the Naval Observatory but we are denied a Senate majority by one seat, there’s going to be a lot of regret and gnashing of teeth. Why chance it?
As I said upfront, I was a Warren supporter. I was willing to give up the seat for her to be President, but it’s not worth it for VP. The Senate is too important, and we need every seat we can get. And I’m not sure I trust the process to work in our favor.
So in response to kos, I think Kamala Harris is the best bet. Klobuchar has the most experience, but I think she’s the Tim Kaine pick. Whitmer’s experience is good (though not national) and she’d probably bring Michigan, but she barely registers. Maggie Hassan would be good – both a governor and a Senator – but she has the same problem as Warren with the seat in the Senate. I wish Jennifer Granholm had been born here: she’d be great. Susan Rice is a Rhodes Scholar with a PhD in International Relations from Oxford, and has the most foreign policy experience at the highest levels, but has never been elected to any office: let’s make her Secretary of State. Val Demings has only been in Congress since 2017; though she was stellar during the impeachment trial, she was a cop for 27 years, which isn’t the best resume at this time.
While I certainly question Abrams’ experience (and don’t believe she’s qualified to be President), she IS a leader and I sense she has remarkable capacity. She will certainly energize black voters. I think she would have made a good governor, and that she would rise to the challenge of the campaign and the Vice Presidency.
With Harris, we keep the Senate seat. Her experience is better nationally, plus she’s won statewide office and has executive experience as Attorney General of our most populous state. She will also energize black voters: in the chart in kos’ diary, she and Warren are tied at 22% in that regard. But as the campaign moves forward and she is front and center, that will happen more and more. African-American votes won the nomination for Biden. However, we need to get all those black voters who voted for Obama, but didn’t come out for Clinton. I believe Harris will best help do that. (She will need to face head-on some of her controversial stances as California AG.)
The same for the farther left, like myself. Harris usually is higher on progressive rankings than Warren or Sanders. When this is made more widely known and she speaks about her progressive bona fides, she’ll bring in a lot of the far left. For instance, while she proposed a less-than-ideal health plan as a presidential candidate, she is a co-sponsor of Sanders’ single-payer Medicare for All plan. (As an aside, I can’t imagine that Kamala Harris actually wants to be US Attorney General. I think we should stop floating that.)
Look. I agree with kos that the first job of a VP candidate is to help the ticket win. That poll, though, is a current snapshot, and I think Warren does better now because she’s more of a known quantity. Things change. After Harris is nominated, I think she’ll unite the party as well as, if not better than, Warren. Then she will be up against Mike Pence instead. She’ll mop the floor with him.
And if she needs to step into the Presidency, she’ll be ready. At 55, she’s three years younger than Barack Obama.
Hey kos…by the way; I love the idea of naming a shadow cabinet. At least the five or six major ones like State, Justice, HHS, and Homeland Security. We just need the media to cover them!
1. If the Biden/Warren ticket loses, we will have probably lost the Senate anyway. Plus the country will be totally screwed anyway, so what does it matter?
PS. Having recently retired, and unable to travel or do anything else due to stay-at-home, I had a few hours to write this. This is my first diary. Please be kind. Also, let me know if I’ve made errors of fact that need correction.
Saturday, May 2, 2020 · 5:39:22 PM +00:00 · sar21102
Well, that’ll teach me to write a diary in a few hours. I wanted to be definitive, but I misinterpreted a section of the law, which causes my scenarios to change a bit. It appears that a Senator’s simply filing a letter of resignation triggers the special election. I have updated the diary with underlined text to reflect this finding. Immense thanks to cseaton for pointing this out.