THE 17TH AMENDMENT: MEL CARNAHAN CAN'T BE ELECTED

ST. LOUIS -- Urban myths -- alligators in the New York sewers, Elvis sightings, UFOs -- can be amusing, but a vote is too important to waste on an urban myth. It is an urban myth that Mel Carnahan is still running for the U.S. Senate. Unfortunately, Democratic politicians are using this myth in an effort to befuddle voters.

The Democrats are contending that Carnahan can, although dead, win the Senate seat and that his widow or someone else they pick can fill the seat. They have premised this claim on a magical interpretation of Missouri's so-called Dead Candidate Statute. Secretary of State Bekki Cook, a Democrat who is in charge of certifying results of statewide elections, says the Dead Candidate Statute allows here to certify Carnahan as the winner of next Tuesday's election if his name on the ballot gets the most votes.

The Dead Candidate Statute provides that the name of a candidate who dies four weeks before the election remains on the ballot. If the dead candidate is "elected," then a vacancy occurs. This vacancy can then be filled by Gov. Roger Wilson, a Democrat who became governor upon Carnahan's death. Wilson would make the appointment on Jan. 3, three days before the duly elected governor -- either Jim Talent or Bob Holden -- takes office. Carnahan's widow, Jean, has stated she would accept that appointment.

By proposing this scenario, which turns entirely upon an obscure and untested provision of Missouri's election statutes, these Democrats are doing three things wrong:

1. They have failed to consider the clear language of the U.S. Constitution.

2. They are seeking to circumvent the 17th Amendment to the U.S. Constitution.

3. They are misleading voters who may be taken in by this ruse.

Before any voter casts a vote for Carnahan, that voter should know he is acting on an urban myth. In truth, the vote will count for nothing.

Dead men can't be elected

Article I, Section 3 of the U.S. Constitution says, "No person shall be a senator who shall not have attained the age of 30 years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen." All would agree that, due to his tragic death, Carnahan cannot satisfy these requirements on Election Day. He is no longer a person, nor is he a citizen of Missouri.

Secretary of State Cook is wrong to contend that the Dead Candidate Statute can modify the requirements of the U.S. Constitution.

When the U.S. Constitution speaks to the qualifications required to hold federal office, it is the final authority. The requirements imposed by the Constitution cannot be changed by a Missouri statute. The U.S. Supreme Court affirmed this fundamental principle in a recent case when it wrote, "Allowing individual states to adopt their own qualifications for congressional service would be inconsistent with the Framers' vision of a uniform national legislature."

The first paragraph of the 17th Amendment changed the method of electing senators. Originally, senators were selected by state legislatures. This was changed to provide for direct election by citizens of the state. The second paragraph of the amendment provides for temporary appointments when Senate vacancies occur. In our nation's history, 171 men and women have been appointed to fill a Senate vacancy. Four of those times involved Missouri senators. But none of these 171 instances involved appointing a senator to fill a vacancy created when a candidate, not the incumbent senator, died.

Democrats claim Governor Wilson may pick a person to fill a vacancy created by a posthumously elected Carnahan. This is in error for two reasons. First, as already noted, Carnahan cannot be elected because he is neither a person nor a citizen of Missouri on Election Day. Second, the temporary-appointment provision of the 17th Amendment concerns a vacancy due to the death, resignation or expulsion of an already elected senator, not a candidate. This is an important difference. Had Carnahan's death occurred after the election but before the beginning of his term, the Constitution would allow a different result. Similarly, had Carnahan been an incumbent senator seeking re-election, there would be no constitutional prohibition on an appointment to fill his term.

Voters' rights are violated

The fundamental principle underlying the 17th Amendment is that the voters, not politicians, will select their senator.

Missouri voters have five candidates running for the U.S. Senate from whom to choose: Republican incumbent John Ashcroft, Grant Stauffer of the Libertarian Party, Hugh Foley of the Reform Party, Charles Dockins of the Natural Law Party and Evaline Taylor of the Green Party. Additionally, the Democratic Party had until Oct. 27 to register any candidate it wished, including Jean Carnahan, as a write-in candidate on the Nov. 7 ballot. But it chose not to register any candidate as a write-in.

Democrat politicians seek to use the existence of Carnahan's name on the ballot as a wild card to be played by Governor Wilson on the eve of his departure from office. While Wilson has stated his preference for appointing Jean Carnahan to the Senate and she has indicated her willingness to accept the appointment, he is not committed to doing so, nor is she committed to accepting such an appointment. The result is that, far from being able to directly elect our senator, Missouri voters under the Democrats' scheme are even more removed from the process of electing our senator than before the adoption of the 17th Amendment.

At least prior to the 17th Amendment a senator was selected by state legislators who had been elected and who were accountable to the voters at the next election. Governor Wilson is neither. He was not elected governor, and he will be leaving office three days after he make the appointment, if it comes to that.

By contrast, consider the recent election of Jo Ann Emerson, in which she succeeded her late husband, U.S. Rep. Bill Emerson. Congressman Emerson died during a primary-election campaign after the date when his widow's name could be added to the ballot, because there was a perennial Republican candidate's name already on the primary ballot. Jo Ann Emerson registered and ran as an independent candidate and won both the primary and the general elections.

The equivalent option available to the Democrats when Governor Carnahan died was to have Jean Carnahan, or whomever else they desired, to register as a write-in candidate. The write-in procedure would have provided the Democratic Party a clear vehicle to present its candidate to the voters. The party chose not to do so, favoring instead this scheme whereby votes cast for Mel Carnahan are a proxy to be exercised by Roger Wilson.

Those voters who would like to see Governor Wilson appoint the widow of the late Mel Carnahan to the U.S. Senate should understand that the constitutionality of such an appointment is dubious and would certainly be contested.

The only avenue to have positively secured the seat for Jean Carnahan would have been to have written in her name on the ballot.

Mark F. (Thor) Hearne II of Ladue, Mo., is a lawyer in private practice in St. Louis and a Republican.