Technically, Ashcroft May Have Won That Election

While I am no lawyer, I read there is a legal case that Ashcroft could have made. And anyway, the quantity and quality of twisted sh*it that went down makes an amazing story.

Before the 17th Amendment, Senators were not elected at all, rather, they were appointed by each state, typically by the Governor. The Framers intended for the Senate to be an elite body that was less vulnerable than the House of Representatives to the whims of the masses. Together, the Constitution and the 17th Amendment (as mblase points out) specifies that the states get to determine the gritty details of how candidates qualify for the ballot, how elections are run, what happens if people die, and so on, so long as the state laws don't violate any specific provisions of the Constitution, or constitutional doctrines such as one man one vote.

Under Missouri law, the state has the power to appoint someone to fill a vacant seat, and so Jean Carnahan was appointed to the vacant seat her husband had "won". The problem is, the Constitution is specific as to who is eligible to become a Senator: "No person shall be a Senator . . . who shall not, when elected, be an inhabitant of that State for which he has been chosen." (Article I, Section 3). In the well established, legal meaning of the term, dead people are not "inhabitants". Missouri law says what should happen if an elected official dies before they are able to take office, but is less clear about what happens if an eligible candidate becomes ineligible before the election occurs. Absent any state law specific to the situation1, all votes for that candidate are presumably null and void, the equivalent of voting for Mickey Mouse or other popular but ineligible write-in candidates. That would mean that of the eligible candidates, Ashcroft got the most votes, the Senate seat was never vacant, and the appointment of Jean Carnahan was moot.

Now, I am not saying I wish Ashcroft had made this challenge! It would have been incredibly rancorous and divisive. He wisely concluded that if he couldn't get more votes than a dead man, he really didn't deserve to be in office, remarking in his concession speech, "some things are more important than politics." After an extremely partisan and bitter (on both sides) Senate race, which Ashcroft was winning before his opponents death bounce in the polls, this simple act of grace and statesmanship was remarkable. Doubly so when you consider the stakes -- his concession meant the Senate would be evenly split between Republicans and Democrats, and the country still didn't know which party would win the Vice-Presidency, and therefore the power to break ties in the Senate.

What a stark and pleasant contrast to how the whole Bush-Gore mess finally played out.

The decorum didn't last long. Soon, Democrats managed to finesse a one-seat majority in the Senate by inducing a Vermont Senator, Jim Jeffords, to "discover" that he had been elected as a Republican but was in fact an independent -- right after he "discovered" his state would get a massive dairy subsidy he'd been after for years.2 Meanwhile, President Bush had finessed his way into office and nominated the defeated Ashcroft to be his Attorney General. During the Senate confirmation vote, the "accidental Senator", Jean Carnahan, decided to "vote her conscience" -- she voted against confirming Ashcroft to the post!

All in all, I'd say this is one for the history books.



1. Having read kto9's write-up, and the Missouri law he cites, it appears the legal case is less clear cut. I've changed the title of my write-up to include the words "May Have". In my defense, I'll point out that the Democrats arranged for the polls to stay open late in a major urban district that heavily favored them, in an eerie echo of the various tactics both parties tried in Florida. Thanks to kto9 for pointing out the article ( The MO laws cited by kto9 had never been applied to these precise circumstances; lawyers might argue its better to have the challenge so that there is a precedent for future elections, even if the challenge failed. The Constitutional provision might trump aspects of the state law, and the Senate might not have agreed to accept the nomination. For all of these reasons there would have been a plausible basis for a legal challenge, had Ashcroft been inclined to drag the nation into yet another morass. And lets be honest, given the stakes, control of the entire Senate, most politicians of either party would have taken the low road, decorum be damned. I'm glad Ashcroft didn't, and applaud his statesmanship, even though I disagree with a great number of his political postions.

2. Recently the one-year anniversary of Jefford's change of heart was covered by the TV show NewsHour with Jim Lehrer on PBS, an outstanding show I highly recommend. The segment, called "Tipping Point", is available in text or streaming audio or video at, or if they change the URL structure over there, go to and search on "Tipping Point". If you can, I recommend the audio or video, its remarkable how Jeffords stammers and stutters as he tries to imply his change was one of principle and not political opportunism. Particularly precious is the expression on the face of the interviewer, Gwen Iffill.