Legal News

Post Conviction and Election, What Happens to Ted?

By Dan Slater

The saga of Alaska Senator Ted Stevens is raising several novel legal questions. What happens when a juror lies to the court about the reason for her absence from deliberations? Is a defendant “convicted” after a guilty verdict or after his sentencing? What happens when a United States senator, after being found guilty on felony charges, is immediately reelected to office?

The latest numbers show Stevens leading Anchorage Mayor Mark Begich by over 3,000 votes, with the absentee ballots yet to be counted. If Stevens wins the election, does he simply skate back into the Senate?

Rick Hasen explores the issue over at the Election Law blog.

Hasen says that Article I, Section 5 of the U.S. Constitution gives the Senate the power to expel Stevens on a two-thirds vote. (The Senate’s Website, notes Hasen, says 15 members have been expelled, 14 for joining the confederacy. Four members of the Senate have been convicted of crimes; three resigned before being expelled and one died.) Expulsion seems likely, writes Hasen, given that Senate majority leader Harry Reid said that he will move forward on expulsion without waiting for Stevens’ appeal to shake out. But on the other hand, some say there’s a presumption against expulsion in the event that voters reelect Stevens knowing of his conviction.

Therefore, Hasen says, the issue is a political, not a legal one. He quotes a CRS report:

The Senate . . . has expressed reticence to exercise the power of expulsion (but not censure) for conduct in a prior Congress when a Senator has been elected or reelected to the Senate after the Member’s conviction, when the electorate knew of the misconduct and still sent the Member to the Senate. . . [It] appears to reflect the deference traditionally paid in our heritage to the popular will and election choice of the people. The authority to expel would thus be used cautiously when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for the judgment of the electorate . . .

Full post as published by Law Blog - WSJ.com on November 06, 2008 (boomark / email).