An ambiguously worded state statute could put Florida in the middle of another national controversy this fall.
Depending on how the law is read and interpreted, the successor to interim U.S. Sen. George LeMieux could take office as early as election night on Nov. 2.
If Republican Marco Rubio wins the Senate contest, the effect is virtually moot, since the seat won't change partisan hands.
But if Democratic Rep. Kendrick Meek or independent Gov. Charlie Crist were to win, Democrats could seek to remove LeMieux immediately, citing Florida Statute 100.161, which reads:
"Should a vacancy happen in the representation of this state in the Senate of the United States, the Governor shall issue a writ of election to fill such vacancy at the next general election; and the Governor may make a temporary appointment until the vacancy is filled by election."
The last three words -- "filled by election" -- are crucial. They could, some legal experts say, mean that the turnover is immediate and would not wait until the designated swearing-in date of Jan. 3, 2011, first day of the 112th Congress.
Lance DeHaven Smith, a professor of public administration at Florida State University, says the situation could be comparable to a special election.
"If there was a special election in November, you wouldn't wait until January to fill the seat," he says.
Others -- including the Florida secretary of state's office, as well as LeMieux and Crist themselves -- maintain that the turnover will occur in January.
But, if Crist or Meek emerge victorious on Nov. 2, it's possible, perhaps even likely, that those interpretations will change in an instant.
That's because the balance of power in the U.S. Senate hangs like a dangling chad.
Democrats currently hold 59 seats in the upper chamber. With a 60th senator on their side, the party would have a filibuster-proof majority. Either Meek or Crist, who hasn't ruled out caucusing with the Democrats, could provide that crucial 60th vote during the post-election, lame-duck session of Congress.
There's a precedent for sending a Florida senator to Capitol Hill early. Two, actually.
In 1936, Gov. David Scholtz made two appointments to the U.S. Senate when Duncan Fletcher and Park Trammell, who had both served for years, died a month apart.
Scott Loftin, a former president of the American Bar Association with ties to the Florida East Coast Railroad, was appointed to take Trammells seat and served only five months.
Longtime Fletcher aide William Luther Hill was appointed to his old boss job in the same year.
According to the Library of Congress, Loftins and Hills terms in the U.S. Senate ended on Nov. 3, 1936 -- the day of the general elections. On Nov. 4, the terms of the two newly elected senators -- Charles Andrews and Claude Pepper -- started.
Crist spokesman Sterling Ivey said, "I checked with our legal team and it looks like the U.S. Senate term will end and the newly elected senator will take office on Jan. 3."
Yet Ivey's choice of wording -- "looks like" -- falls short of an ironclad declaration. If Crist were to win the Senate seat on Nov. 2, the situation might "look" different.
Indeed, DeHaven Smith said the matter is not clear-cut.
"You can make a case on both sides. It's not easy and it may have to be resolved in court," the professor said.
Florida Democratic Party spokesman Eric Jotkoff declined to comment on his party's reading of the situation.
The state's rationale for installing a newly elected replacement ahead of the customary January date revolves around seniority. Getting into office two months before one's classmates gives an early arrival a leg up on the ladder of power and influence.
Florida is one of 37 states that makes this provision involving elected successors to interim appointments.
But, this year, the stakes are far higher than any single state's concern about seniority. During the final, post-election days of the 111th Congress, the Senate is poised to consider several controversial and highly partisan issues.
Chief among them: the fate of the Bush-era tax cuts, the abolition of the don't-ask-don't-tell policy for the military and the so-called DREAM act, which would confer U.S. citizenship on foreign-born children of illegal aliens.
Crist and Meek, who have sided with the Democratic leadership on each of those issues, could provide pivotal, filibuster-breaking votes as the 60th senator.
Faced with that prospect, it's likely that Republicans -- both in and out of Florida -- would challenge any attempt to install Crist or Meek before Jan. 3. Most political prognosticators predict that, by then, Republicans will have picked up additional Senate seats and narrowed, or even erased, the Democratic advantage in the upper chamber.
In Tallahassee, the plot thickens as well if Crist were to win the Senate race and vacate the governor's office early. In that scenario, Lt. Gov. Jeff Kottkamp would become governor during the interim period and lead the transition of that office.
All of which makes the party affiliation and installation date of Florida's newest senator a subject of growing interest and urgency, both inside and outside of the Sunshine State.
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Contact Kenric Ward at kward@sunshinestatenews.com or at (772) 801-5341. Kevin Derby contributed to this story.
