Republicans have been thrown into a tailspin by the allegations against Roy Moore, their party’s nominee in the Alabama special election for U.S. Senate.
Since the flood of revelations triggered by reports in the Washington Post about Moore’s history of sexually assaulting underage girls, Republican leaders have thrown him under the bus.
Yet Republicans are also desperate not to lose a safe seat to a Democrat, with only a narrow margin supporting their 52-seat majority. If Democratic nominee Doug Jones were to win the race, the path towards Democrats retaking the Senate in 2018 looks much more plausible.
It’s too late to take Roy Moore’s name off the ballot for the December 12 special election
Under Alabama law, it’s too late for Moore’s name to be removed from the ballot. The state’s restrictive ballot laws have also prevented any third-party candidates from appearing on the ballot.
McConnell is reportedly exploring a novel scheme: Have appointed Sen. Luther Strange, who lost the GOP primary to Moore, resign his seat. Then, have the state’s Republican governor Kay Ivey call a new special election, on the basis of Strange’s resignation.
This scheme is riddled with both statutory and constitutional flaws. State law provides no procedure for the governor to cancel a special election. Additionally, the plan would be ripe for constitutional challenge under the 17th Amendment.
The 17th Amendment to the Constitution allows governors to make only interim appointments
As amended in 1913, the Constitution’s 17th Amendment reads, in relevant part:
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
The state’s governor is supposed to call an election, and a temporary appointment can only serve until the results of that election.
Such an election has already been called, and is currently underway. Luther Strange’s appointment as a temporary Senator expires when the special election produces a new Senator.
If Strange were to resign now, any newly-appointed Senator would only hold office for the month or so until the December 12 election results are finalized. It would not mean the election already called could be canceled.
Under the Constitution as amended, the people are entitled to choose their senator
It is true that Gov. Kay Ivey in a sense rescheduled the election, after ousted and disgraced former Gov. Robert Bentley – who resigned over allegations of sexual infidelity – had initially scheduled it for November 2018.
But in that case, there was a strong legal argument that Bentley’s original scheduling had been invalid under state law. Thus, Ivey’s call for an election scheduled on December 12 was the first valid writ for an election.
If Democrat Doug Jones wins the seat, then he will be the duly-elected junior senator from Alabama, until the term expires on January 3, 2021.
That might be tough news for Republicans, but Republicans aren’t entitled to win elections just because it’s in a Republican-leaning state. Nor are they allowed to cancel elections just because their party chose to nominate a catastrophically flawed candidate.
What if Moore wins, but is expelled by the Senate?
If Moore wins, then the Senate could then decide to expel him, as threatened by McConnell and the head of the National Republican Senatorial Committee, Sen. John Cornyn, R-Texas. In that event, the state’s governor would appoint another interim senator, and would also call another special election to take place in 2018. This is the only legitimate scenario that results in a new election being held.
If Republicans want another alternative in the race, they should recruit and endorse a write-in candidate. Canceling and rescheduling an election because the expected outcome is disliked by the party in power is a move fit for a banana republic.
If Jones wins on December 12, then the seat will be his for the next three years, fair and square. If Republicans want to revert to a system where senators are elected by the majority party in the state, they should repeal the 17th Amendment.
Until that happens, the people are entitled to elect their members of the Senate.
(Republican candidate for U.S. Senate Judge Roy Moore speaks during a campaign event at the Walker Springs Road Baptist Church on November 14, 2017, in Jackson, Alabama. The embattled candidate has been accused of sexual misconduct with underage girls when he was in his 30’s. Photo by Jonathan Bachman/Getty Images.)