Who Gets the Last Word in a Disputed Senate Race? The Senate.
TALLAHASSEE, Fla. — Amid the blur of lawsuits and noise around the recount in Florida’s Senate race lies a possible outcome that could be the ultimate twist: Senator Bill Nelson may not win the election, even if he wins the election.
That is because the Constitution says that the ultimate arbiter of who gets a Senate seat is the Senate itself — not election officials or the courts.
That would not seem to bode well for the Democrats or their incumbent, Mr. Nelson. Though he trails his Republican opponent, Gov. Rick Scott, the margin has dwindled to about 13,000 votes; Mr. Nelson hopes to make that up in the recount and take the lead.
If that were to happen, though, it is not unthinkable that Republicans would consider using their majority power in the Senate to refuse to seat Mr. Nelson and to give the seat to Mr. Scott instead — especially considering how he and his party have repeatedly insisted, without offering evidence, that the ballot review process has been riddled with fraud and misconduct.
“Most people don’t understand this, and it’s one reason I think what’s going on in Florida is so important,” said Edward B. Foley, a law professor at Ohio State University and the author of “Ballot Battles: The History of Disputed Elections in the United States.”
Most commentary about the Florida recount has focused on the judiciary as the institution that would decide the issue if the fight drags on and no one concedes. After all, that is where the Nelson and Scott campaigns have been filing dueling lawsuits over the vote-counting. And most memorably, that is where the presidential election of 2000 wound up, when the Supreme Court decided in Bush v. Gore to halt the recount in Florida.
But what prevents the escalation of most recounts into a constitutional showdown is the willingness of the loser to accept defeat.
“It was Gore’s concession the night after Bush v. Gore that ended the controversy in Florida,” Mr. Foley said. “There were mechanisms by which Gore, if he’d wanted to fight on, could have.”
The Scott campaign has so far refused to entertain the notion that he could lose, except to say that would only happen if Democrats stole the election. This week, a Scott adviser refused to answer when asked on CNN whether Mr. Scott, as governor, would certify the results of the race if he lost. And on Tuesday, a spokesman, Chris Hartline, said the notion of intervention by the Senate was not relevant because “we have a lead that is mathematically impossible for Nelson to close.”
But in recent days, Republican lawyers have been observing in private conversations that the Constitution leaves the option wide open to them.
Article 1, Section 5 makes it about as clear as a cloudless day on the Gulf Coast: “Each House shall be the judge of the elections, returns and qualifications of its own members.”
It may seem far-fetched, and even undemocratic, for a majority party in the Senate to step in and select a winner when the voters have already had their say. But there is precedent for it as recent as 1974, when recounts in two states went to the Senate for review.
The one with the most parallels to today’s situation in Florida was the race that year in New Hampshire. The Democrat, John Durkin, trailed by 355 votes on Election Day, and then overtook his Republican opponent, Louis Wyman, in a recount.
When a second recount reversed the outcome again and found Mr. Wyman to have won by 2 votes, Mr. Durkin asked the Senate to step in and resolve the race. Though the Democrats had a solid majority, the Senate deadlocked for months. Unable to seat Mr. Durkin, the Senate decided to declare the seat vacant, so that New Hampshire could schedule a special election to fill it; Mr. Durkin won that race outright.
The possibility of Senate intervention arose again in 2008, when the race between Al Franken and Norm Coleman in Minnesota came down to a few hundred votes. But that contest was resolved when Mr. Coleman eventually conceded.
Mr. Nelson showed no sign on Tuesday that he was ready to yield in Florida, and insisted in a news conference with the Democratic leader, Senator Charles E. Schumer of New York, that the recount must ensure that “every lawful vote be counted correctly.”
Mr. Scott and his allies, including President Trump, have condemned the recount process, part of a concerted effort by Republicans to discredit the process as illegitimate and tighten their grip on the Senate.
If Mr. Scott’s lead stands, Republicans would control at least 52 seats, and possibly one more, depending on the outcome of a runoff in Mississippi. A widened majority gives the party even greater ability to advance its agenda, especially by confirming more conservative judges to the federal bench.
Many variables could affect whether Republicans choose to install Mr. Scott with a Senate vote, should it come to that. There would be, for instance, the margin of his loss, the evidence of fraud that they would be under pressure to produce, and above all, their willingness to be seen acting in such a bluntly partisan way.
Under the leadership of Senator Mitch McConnell of Kentucky, Senate Republicans have shown little hesitation to use their procedural power for partisan ends, as they did when they refused to consider President Obama’s nominee for the Supreme Court vacancy left by the death of Justice Antonin Scalia.
“It’s one of these things where, prior to the complete disintegration of the norms that have constrained American politicians, you might not have thought this was really a possibility,” said Nathaniel Persily, a professor at Stanford Law School. “This is just one more political norm that’s going to be under stress.”
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