The Latest Ploy GOP Considers to Avoid a Roy Moore Senate Problem Likely Violates the 17th Amendment

I spent a good part of my Saturday afternoon tweeting and blogging in conversations with Hugh Hewitt about ways Republicans could deal with the Roy Moore mess.

At first Hewitt suggested cancelling the election altogether, and letting Strange just complete the term. I protested that cancelling an election already underway (military and other absentee  voter have already voted) is profoundly undemocratic and dangerous. It also appears to violate the 17th Amendment, which requires that an appointment of a temporary Senator be temporary, and that the state schedule a replacement vote.

Eventually Hewitt relented on this point (not because he thought it was undemocratic—indeed he seemed to believe Republicans are somehow entitled to Alabama’s two Senate seats without an election), but because he thought it would violate the 17th Amendment.

So he hit on another idea, and according to Politico it is an idea Republican leaders nationally are now weighing:  get Luther Strange, the temporary Senator appointed to replace Jeff Sessions, to resign, and then with the new vacancy, declare this election void and start over.

I’ll talk about the political implications in a bit, but first the constitutional issue.  Here’s what the 17th Amendment says, in pertinent 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.

When Jeff Sessions resigned, that created a vacancy. Alabama law allowed the governor to fill that vacancy and to set the date for a special election. The governor (actually the predecessor) appointed Luther Strange and purported to set the date of the replacement election. (There’s some controversy about whether he had the authority to do this). The new governor reset (or properly set) the replacement election. We’ve had the primary, and now we are in the general election.

The governor was mandated to issue a writ of election. Because the writ of election has been already issued to fill a vacancy, the election goes forward under the language of the 17th Amendment. Temporary vacancies filled by the governor don’t change that. That’s a separate part of the 17th amendment and separate from the duty to issue the writ of election when there is the vacancy of an elected Senator.

Imagine if a temporary Senator appointed until an election died in office, after an election had been called. Under the 17th Amendment, we would not cancel the election already being held under the 17th Amendment requirement for a new election. We would just keep going. It’s the same thing for a voluntary resignation by the temporary Senator.

I’ve seen no authority to the contrary that a temporary Senator’s leaving office (for whatever reason) moots an election already in progress.

Now onto the political issues:

  1. If this gambit actually worked, and survived court challenge, Moore could run again and still win.
  2. Why would Luther Strange put himself through this again?
  3. Jeff Sessions wants no part of this.

Given the legal and political difficulties, the national Republicans have only a few choices. They can run a write-in election, maybe with Strange, against the wishes of the state party.  Moore could still win that, but more likely Republicans split the vote and the Democrat Jones wins.

Or Moore could win the election, and Republicans could try to expel him. There’s a Senate norm, apparently, of not expelling for conduct before taking office that voters knew about. Do Senators violate this norm?  It takes 2/3 to expel.  What if Democrats, either following this norm or sticking it to Republicans, don’t vote to expel?  Then Moore is a constant national story, and a reminder of What the Republicans are trying to avoid.

Or Moore could go on to lose, giving Jones the seat and moving the Senate majority to one seat.

No wonder Republicans are contemplating a constitutional Hail Mary.

[This post has been updated.]

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