If Chris Collins remains on the November ballot, he won't be the only indicted congressman seeking re-election this year.
As of now, so would Collins' Republican colleague Rep. Duncan Hunter of California, who is facing criminal charges for allegedly using campaign funds on tequila shots, family trips to Hawaii and Italy, and other personal expenses.
The pair are the only sitting members of Congress currently facing criminal charges, although there's also an incumbent U.S. senator on the New Jersey ballot whose corruption case ended in a hung jury before charges were dropped eight months ago.
The New Jersey Democrat, Bob Menendez, is now fighting for his political life against a deep-pocketed Republican in an overwhelmingly Democratic district.
"Being indicted is bad for your re-election prospects, but there are counterexamples here and there," said James Battista, a University at Buffalo associate professor of political science.
Of 24 cases going back to 1988 reviewed by The Buffalo News, most senators and representatives who faced indictments and trials either resigned, did not seek re-election, or lost their re-election bid.
One notable exception is former Rep. Michael Grimm, a Republican from Staten Island, who was indicted on tax evasion and perjury charges in 2014. He beat back a Democratic challenge that year, and was re-elected while under indictment.
But Grimm resigned a month later, after pleading guilty to aiding in filing a false tax return. He was sentenced to eight months in prison. He tried to win back the House seat in 2018, but lost a primary race.
Rep. Floyd Flake, a Democrat in New York, also ran successfully while indicted, but his case had a different outcome.
Flake in August 1990 was accused of skimming money earmarked for a church-sponsored housing project in Queens. He denied the charges, and was re-elected later that year.
In April 1991, when Flake went to trial, the case was dropped after a judge dismissed most of the charges. Flake remained in Congress for another six years.
Getting Collins off ballot tough
For almost three weeks now, a parade of Republican hopefuls has been convincing, cajoling and corralling party leaders for their blessing to replace Collins on this fall’s 27th Congressional District ballot.
But for the GOP, selecting a candidate might be the easy part. Removing Collins, indicted earlier this month on a host of insider trading charges, from the ballot offers a far more formidable challenge.
A contingent of top election lawyers from around the state is confronting the problem, but nothing is certain.
There's been recent talk that the GOP is exploring possibilities that revolve around the federal Hatch Act, which would shift Collins to a federally funded job that carries a ban on running for elective office.
The maneuver was most recently used in this area when Collins, then the Erie County executive, in 2009 appointed County Legislator Kathy Konst to serve as a commissioner in his administration, according to attorney Ralph Mohr, Republican commissioner with the county election board.
Konst's name was removed from the Democratic ballot line in that fall’s election, and replaced by Diane Terranova after beating back a GOP court challenge. Terranova lost in the general election.
The more widely discussed plan for Collins, however, involves finding a lower-level elective office for the congressman to slip into. There are currently open positions in Eden and Amherst, although both have residency requirements. Another option would be an officeholder in Collins' hometown of Clarence giving up his or her seat to make way for for Collins to run for that position.
No action is expected until Sept. 14, the day after party primaries when nominations are slated for official filing with the state Board of Elections.
“We’re still confident that based on case law and election law, Congressman Collins can be substituted with his cooperation,” Langworthy said.
But nothing is certain.
Party sources insist they want to avoid a Collins candidacy because they deem it unfair to offer voters a candidate under indictment who faces an uncertain future that could possibly include a felony conviction and jail time.
But since GOP leaders are navigating through virtually unexplored election law territory, Collins could continue on the Nov. 6 ballot by default or through a court challenge by Democrats, Republicans acknowledge.
“We have to have a contingency for every scenario,” said Erie County Republican Chairman Nicholas Langworthy. “It’s like having a playbook.”
While Langworthy didn't detail what the contingency would be, other GOP insiders said discussions are being held locally and with national Republicans, but that there haven't been any talks with Collins on either campaign or postelection strategy.
Collins could remain in office while under indictment if re-elected, but some local Republican insiders have said their hope is that the congressman would resign after the election, creating a vacancy that could be filled in a special election.
“This is the most complicated thing I've ever done as chairman of this party,” said Langworthy.
Could Collins win?
While the Menendez race in New Jersey is getting a lot of attention nationally, the Collins and Hunter cases are often discussed together – in part because both congressmen were indicted in August, and also because the two were the first House members to openly support President Trump's 2016 campaign. Collins was first to support Trump. Hunter was second.
But similarities go beyond that. Both Republicans represent deep red districts. In both cases, the indictments are seen as opening the door to Democratic opponents.
One big difference: While Hunter is actively seeking re-election, Collins is not.
After being indicted Aug. 8, Collins announced Aug. 11 that he was suspending his re-election campaign.
In California, meanwhile, Hunter is claiming he's the victim of a politically motivated prosecution, and says he's staying in the race. Polls indicate he could win.
Hunter was leading his Democratic opponent by eight points, 47 percent to 39 percent, with 13 percent undecided, in a poll released last Monday. The poll, conducted by SurveyUSA , has a margin of error of plus or minus 5.5 percent.
Of likely Republicans voters, 77 percent are standing by Hunter, the poll found. Among conservative voters, 69 percent view the charges against Hunter as politically motivated, the poll found.
"In some respects, voters in Hunter's district greet news of the indictment with a yawn," according to SurveyUSA researchers.
That's not surprising, said Gary Jacobson, an emeritus professor of political science at the University of California San Diego.
"It's an extremely Republican district, his family name has been on the ballot going back 40 years, and there are lot of Republicans who don't like Hunter, but won't flip over and vote for a Democrat," Jacobson said.
In New York, a 27th District poll recently conducted by Clout Research of Ohio found any of eight possible Republican candidates could beat Nathan McMurray, the Democrat running for Collins' seat. The News is not aware of any poll that includes Collins' name on the ballot.
But given the heavy Republican makeup of the district, Collins has a "decent shot," of beating McMurray, Battista, the UB political science professor, said.
Either way, Battista predicts the 27th District will end up in Republican hands within the next four years.
Collins has said he's innocent, and if acquitted, political insiders say he could possibly remain in Congress throughout his term if he runs and wins in November.
But given the evidence presented, many in Buffalo's legal community have said the government is presenting a strong case, and that it will be difficult for Collins to escape a conviction and prison time.
Congress does not require its members to resign if they are convicted of crimes, but those who don't leave voluntarily are subject to expulsion, Jacobson said.
So whether Collins immediately resigns upon being re-elected, or remains until convicted, the stage gets set for a special election which Republicans will inevitably win, Battista said.
If, however, McMurray pulls off an upset win Nov. 6, the Democrat will likely serve one term – then be beaten by a Republican in the heavily Republican district in two years, Battista predicted.
It's a scenario that's occurred before in Congress.
Back in 2008, Rep. William Jefferson, a Democrat from Louisiana, ran for re-election while indicted on bribery and fraud charges. He won a primary in his heavily Democratic district, but lost his general election race to Anh Quang "Joseph" Cao.
Cao was the first Republican to win the seat since the late 1890s. He's also the last Republican to hold the seat.
When Cao ran for re-election in 2010, he was trounced by his Democrat opponent, 65 percent to 33 percent.
Staff reporter Stephen T. Watson contributed to this story.