In Alaska, there is still no call in the race between Democratic challenger Mark Begich and Republican incumbent (and recently convicted felon) Ted Stevens, who has a 3,200 vote lead with 81,000 ballots still to be counted. Some think that the uncounted ballots may push Begich over the top. But what if Stevens wins? Will he get to keep his Senate seat despite his conviction?
Well, it's complicated. Potentially, the easiest solution would be for Stevens to resign. Then, Alaska's Gov. Palin would call a special election. But even in that case state law is unclear on whether Palin can first appoint a temporary replacement (thus giving her presumably Republican choice a chance to run as an "incumbent").
And what if Stevens refuses to resign? The Senate has the option under Article I, Section 5 to expel Stevens by a 2/3 vote. But Congress has traditionally been hesitant to expel a member for conduct that took place in a prior session of Congress. Why? Well, the voters would have known about Stevens's conduct prior to the election, and thus would have returned him to the Senate with their "blessing." The presumption that the people get to choose their own representatives is strong. Even so, Senate Majority Leader Harry Reid has said that Stevens is "going to be kicked out of the Senate. Of course he is." We'll see. If Stevens is expelled, that decision may be held by the Supreme Court to be a non-justiciable political question. Should be interesting, no matter what happens.
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I would think that the general presumption about the election serving as a kind of referendum on the conviction would be weakened by the fact that the conviction was so close to the election and the appeal was (is still) pending and the candidate himself was saying on that basis that he was not in fact convicted yet, not really. This reminds me of other situations where an incumbent has strong community standing–sometimes Democrats in African American districts–and they are reelected after a conviction and people around the country think they must be crazy or in the thrall of racial demagoguery against "outsiders."
What you leave out here is the problems with the Alaska vote count. It is beginning to look like there were shenanigans at work.
How is it possible for Alaska to have registered 20,000 new voters, had record early voting numbers and had their own Governor on the ticket….AND YET….the total Alaska vote count was 11-14% lower than in 2004?
In addition, the only state where pre-election polling was off by a wide margin was….Alaska.
The question is….did Stevens actually win?
I see Prof. Lee's point, but I'm not sure if the situation is even that complicated. It may be simply that there were enough people who wanted to make sure that a Republican won the seat to give give Ted Stevens the win. They may not have wanted Stevens to retain the seat, but it's pretty much a sure thing he will be gone (through quitting or expulsion), at which point there will be a special election (and Alaskans can elect a different Republican). If they vote for Begich, Stevens is out, but a Democrat is in.
Well, Begich is ahead now. If he pulls it out, then the problem is solved the easy way.