Delaware Grapevine: Saved by the courts

The federal government can make people take off their shoes in airports. It can tell businesses to get ready to fill out paperwork every time they pay at least $600 for something.

It can confiscate a peanut butter sandwich that was supposed to be lunch for a tourist before granting admission to the U.S. Capitol. This really happened.

Even a federal government picayune enough to micro-manage, among the other things, a peanut butter sandwich appears to have no appetite for forcing Delaware to hold a special congressional election, not for a term that would last about as long as Christmas break.

It was a worry.

Delaware has found itself caught in a strange political limbo. It turns out to be quite complicated for a state to present the country with a vice president it also re-elected to the Senate. Even more complicated than dodging the vice presidential motorcade on the winding roads of Greenville.

Ted Kaufman was appointed to replace Joe Biden, the Democratic continuity ensured by a Democratic governor, but appointed senators are like crime. They come with a statute of limitations.

The limit tolls for Kaufman on Election Day, when the voters settle on a new senator to serve out the rest of what would have been Biden’s term, which is up again in 2014. Kaufman is gone on Nov. 2. He does not get to stay until the next Congress convenes on Jan. 3.

It is not a stretch to conceive of Mike Castle as the new senator, not after he has already put together a streak of 12 statewide victories as a Republican lieutenant governor, governor and congressman.

If so, there would be an instant vacancy for the state’s lone congressional seat, unoccupied until a new member arrives in January, and the U.S. Constitution is unblinking about an opening in the House of Representatives. It says the governor shall call a special election to fill it.

What in the name of Madison, Hamilton and Jay is a governor to do? By the time a special election could be held under state law, the Christmas stockings would be hanging, and the term would be over so fast, people would still be keeping their New Year’s resolutions when it ended.

This is a nation of laws, so it is also a nation of lawyers — convenient to have when the law is not so convenient. There could be an out-clause.

It is spelled out in a 2006 memo drafted by a lawyer in the Congressional Research Service, a standing army of experts employed by the Congress.

The memo cited a couple of court cases concluding that a governor was required by the Constitution to call an election, but not if the length of the term was negligible.

“I think a court would be reluctant to order a governor to conduct a special election for a term that would last a week or two. The point is, the court is not going to order an act that is of no practical benefit,” said Richard Forsten, counsel to the state Republican Party.

It is hard to think of a more negligible term than one barely spanning Christmas and New Year’s.

Not only is it fleeting, but the Congress is about as likely to be in session as Joe Biden is to be caught under the mistletoe with Sarah Palin.