Fred Barnes, writing from his undisclosed la-la land location, is arguing that Paul Kirk won’t be able to vote after Tuesday. His argument:

But in the days after the election, it is Kirk’s status that matters, not Brown’s.  Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy.”  The vacancy occurred when Senator Edward Kennedy died in August.  Kirk was picked as interim senator by Governor Deval Patrick.

[SNIP]

But based on Massachusetts law, Senate precedent, and the U.S. Constitution, Republican attorneys said Kirk will no longer be a senator after election day, period.  Brown meets the age, citizenship, and residency requirements in the Constitution to qualify for the Senate.  “Qualification” does not require state “certification,” the lawyers said.

Certification doesn’t mean qualification – sure. What certification does mean is that the election is finalized, complete, done.

And what precedent? We just have to look at recent history for precedent. Rolland Burris was appointed to the Senate, but the Senate couldn’t seat him until he was “certified” by the state. The election isn’t over until that process is complete.

The only precedent I can think of would be in the recent Franken/Coleman circus. One thing the lawyers seem to be overlooking is the basis for which Coleman could not serve any longer. Those are laid out in article 1 section 3 of the U.S. Constitution:

The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by 17th Amendment, section 1.) for six Years; and each Senator shall have one Vote.

Coleman’s term was up per the U.S. Constitution, which trumps state constitutions.

Given the closeness of the polls in this race, we could end up with an election that will result in a challenge after Tuesday. They can’t just yank Kirk from office after this. It will take interaction from the courts, and they typically don’t like getting into Congressional business. So what Barnes is writing about is nothing more than a pipe dream. I don’t see any circumstance for his idea to come to fruition, and even if it does it will involve a battle within the courts.