The Loophole That Could Make Warren Vice President

Massachusetts Sen. Elizabeth Warren has emerged as one of the top potential vice presidential picks for Hillary Clinton, but there’s a problem: She’d have to resign from the Senate in order to serve as vice president, thus allowing the state’s Republican governor to appoint her replacement. Luckily for Warren, there’s a loophole that would allow Democrats to circumvent this problem and run Warren as vice president without likely sacrificing a Senate seat to the GOP.

According to Massachusetts law, the governor gets to appoint a replacement when a Senate seat is vacated. But it’s only a temporary arrangement; the law states that a special election must be held within 160 days of the seat becoming vacant. In theory, this means Warren’s interim replacement would only get to serve for the first five months of the next administration.

Here’s the loophole: A Senator from Massachusetts doesn’t have to actually resign in order to start that 160-day countdown timer. They merely have to file a letter with the state announcing their resignation. But there’s no limit on how far in advance a senator can make such an announcement.

So Warren could file a letter now, or next week or whenever, announcing that she’ll be retiring from the Senate in January of 2017 — inauguration day. There are more than 160 days between now and then, so if she timed it right, Massachusetts would be required to hold a special election the day after the next president is sworn in. The Republican governor, Charlie Baker, would not have the opportunity to appoint a replacement.

The revelation comes from none other than Senate Minority Leader Harry Reid, one of the most powerful Democrats in the country and proponent of Warren’s vice presidential prospects. Reid launched a review of Massachusetts law in search of just such a loophole, and he found it.

There are drawbacks to this plan. If Clinton chose Warren as her running mate but lost the election, and Warren wanted to retain her Senate seat, she’d have to commit the ultimate flip-flop and take back her resignation. She can legally do this, but it would make her resignation look insincere and crassly political, and potentially hurt her reelection chances in 2018.

It’s also worth taking a step back and remembering that Clinton hasn’t offered the VP slot to Warren yet, and Warren hasn’t indicated that she would accept it, in any case. Clinton could choose a different running mate altogether, and Warren could conclude that she’d be better off as a Senator than a vice president, which is largely a ceremonial position.

But the argument for Warren as VP is very strong — so strong that I myself have abandoned my earlier skepticism of the idea. As a fellow traveler and ideological companion of Bernie Sanders, she has capacity to win over disillusioned supporters of the Vermont senator, which will be very important for Clinton in the general election. Warren has also been one of the most effective critics of Donald Trump, which would also be a boon to the Democratic ticket.

Clinton is probably still weighing her running mate options, and we may not know her choice for a while. But the argument for picking Warren was already strong, and it just got a whole lot stronger.