With allegations that Republican candidate for Senate in Alabama Roy Moore initiated sexual contact with a 14-year-old when he was 32, there is already talk about him withdrawing from the race. Derek Muller reports that Alabama law would not allow a replacement this late. But should courts allow it anyway?

I wrote in a Stanford Law Review article, The Democracy Canon, about a similar situation which occurred when a candidate (Torricelli) withdrew from Senate in New Jersey after the deadline, and the New Jersey Supreme Court allowed a replacement (Lautenberg) to appear on the ballot anyway. Lautenberg went on to win. The opinion was controversial, and in my article I defend it as giving voters a real choice in an election when the statute did not absolutely forbid the replacement (applying what I call “The Democracy Canon”).  I’d say the same principle should apply here, if there is a permissible construction of the statute.  Here’s what I wrote defending the NJ Supreme Court:

The New Jersey Supreme Court held that even though the vacancy occurred fewer than fifty-one days before the election, and the Democratic Party’s selection of a replacement was to be made fewer than forty-eight days before the election, the Democrats could still name a replacement. The decision was unanimous among the seven justices, which included four Democrats, two Republicans, and an independent.

The Samson court relied heavily on the Democracy Canon in reaching its ruling, and especially on a string of earlier New Jersey cases which had extended filing and other election law deadlines under the authority of the Canon. Especially important was the court’s earlier decision in Catania v. Haberle, in which the court extended a statutory deadline for filling a vacancy on the ballot in a special election:

Concerns have been expressed that by giving this deadline provision a directory, rather than mandatory, construction we will create doubts about many other sections of the election law, a law that is driven by deadlines. Our only response is that this Court has traditionally given a liberal interpretation to that law, “liberal” in the sense of construing it to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day. Obviously, there will be cases in which provisions must be interpreted strictly, mandatorily, for in some cases it will be apparent that that interpretation serves important state interests, including orderly electoral processes. But those cases must be decided on their own facts, under the law involved. This Court has never announced that time limitations in election statutes should be construed to bar candidates from the ballot when that makes no sense and when it is obviously not the Legislature’s intent. There are states that have such rules, but New Jersey is not one of them….

The main criticism of the New Jersey Supreme Court was that its decision went against the apparently clear words of the statute. New Jersey Republican Party Chairman Joseph M. Kyrillos called the ruling that a change could be made fewer than forty-eight days before the election “absurd.” U.S. Senator Bill Frist, then chairman of the Senate G.O.P. campaign committee, called the argument to extend the time “a desperate grasp at getting around the law.”

But did the New Jersey Supreme Court in Samson really “bend the rules” to achieve the “desirable goal” to “permit candidates from each of the major parties to appear on the ballot in a Senate election”? Did it employ a “legal fiction” in stating that the statute was silent on the question of filling vacancies in fewer than forty-eight days?

No. The court was surely right that the statute did not expressly bar a party from choosing a replacement candidate fewer than forty-eight days before the election. Indeed, Bill Baroni, one of Forrester’s lawyers, conceded in a law journal article written after the case ended that “[t]he statute is silent as to what would happen after the forty-eighth day.” To reach the conclusion that the statute barred a party from filling a vacancy in a time shorter than forty-eight days before the election, one had to (at least implicitly) apply the expressio unius linguistic canon of construction: the inclusion of one thing (the right to fill vacancies at least forty-eight days before the election) indicated the exclusion of the other (no right to fill vacancies in forty-eight days or fewer). As Justice Scalia put it in talking about the expressio unius canon generally: “What [the expressio unius canon] means is this: If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay. The inclusion of the one class is an implicit exclusion of the other.

I concede that reading the New Jersey statute in light of the expressio unius canon alone leads to the conclusion that replacements are not allowed fewer than forty-eight days before the election. Indeed, this is the most natural reading of the statute purely as a linguistic matter. But as Professor Mullins has remarked, the reality of language in context is often more complex than “a simple matter of twelve-year-olds.” I

in the context of New Jersey statutory interpretation of election laws, the Samson interpretation followed the rules rather than bent them. The New Jersey Supreme Court, which had consistently used the Democracy Canon to extend deadlines for the benefit of voters, had long ago created a de facto clear statement rule when it came to statutory deadlines. The court essentially said that if the New Jersey legislature wanted a stricter statute, it needed to use unmistakably clear language like Colorado. As the Samson court observed: Our cases repeatedly have construed the election laws liberally, consonant with their purpose and with practical considerations related to process. We are aware of only one instance in which the Legislature amended an election provision to prevent the filling of a vacancy, effectively overriding the decision of this Court . . . .Indeed, despite criticism of the Samson opinion, the New Jersey Legislature has not amended its vacancy statute to impose clearer language.

I’d have to look more closely at the words of the statute in Alabama to see if it is possible to bend them to allow this. But why shouldn’t voters have a choice between two actual candidates if Moore withdraws?

UPDATE: The other issue are the overseas and military voters, who have already received ballots under UOCAVA.  I would think that if these voters cannot get replacement ballots it may be too late to allow a Moore replacement.

SECOND UPDATE: Much more from Derek on write-ins and other complications.