Republicans could block Carnahan's widow if she wins Senate seat

By Brooks Jackson/CNN

WASHINGTON (CNN) -- Call it a political ghost story for Halloween: Polls show Democrat Mel Carnahan could defeat incumbent Missouri Republican Sen. John Ashcroft in next Tuesday's election, even though the two-term governor died in a plane crash October 16.

With Missouri Democratic Gov. Roger Wilson poised to name Carnahan's widow, Jean Carnahan, to the seat if the deceased candidates defeats Ashcroft, Republicans already are predicting legal and political challenges to deny Carnahan a posthumous victory.

Jean Carnahan

"There is no question there will be a challenge," GOP election lawyer Mark Braden said. "No question whatsoever."

A 1999 Missouri law specifically states that if a deceased candidate gets enough votes to win, "a vacancy shall exist." State law then provides for the governor to appoint someone until a special election can be held.

But the Senate does not automatically have to accept the governor's appointment. The Constitution says each house of Congress makes the final decision on seating members. So Senate Republicans, if they are still in the majority -- could refuse to seat the widow Carnahan and call for a special election.

"I think that the best argument is that she didn't get elected -- that the voters of Missouri, not the lame-duck governor who's about to leave office, should determine who is a senator," Braden said.

For one thing, Republicans point to the Constitution's requirement that a senator must be "an inhabitant of that state for which he shall be chosen." Whether Carnahan, in death, is an "inhabitant" could be debated on the floor of the Senate.

Democrats say Jean Carnahan is an inhabitant, whatever her late husband's status, and that Republicans would have no valid grounds to refuse seating her.

"Nothing that they've said is rooted in any known legal or constitutional principle," Democratic election lawyer Bob Bauer said. "It's all poppycock."

Added Missouri Attorney General Jay Nixon, a Democrat, "This is just an effort to make people believe when they go into the voting booth that they're doing something either illegal or wrong."

Control of the Senate could come down to this one seat, so this one could haunt Washington for months to come.