No, the Alabama Legislature Should Not Be Able to Constitutionally Cancel the Special Senate Election to Avoid a Democratic Win

Seems odd that I have to even write this, but over on Twitter, Hugh Hewitt makes a pitch for Alabama to cancel the special election and allow Sen. Strange to complete the term:



(He writes: “If @GovKayIvey and legislature agreed to cancel special election and provide that appointed senator serves until end of term, tough to see how federal ct overturns law when the Moore/Jones objections arrive.”)

I responded that I doubted that a court would agree it is constitutional to cancel the election, and Hugh asked for authority in which a court has ordered an election to be conducted that a state legislature has cancelled.

I cannot find any direct historical comparisons; that is I cannot find any time where a legislature sought to cancel a special election and keep the temporary appointee in the seat until the next scheduled election. Probably because doing so is inherently undemocratic.  Indeed, here’s some historical precedent:

It seems to me that cancelling an election already in progress (military and overseas voters are already voting under UOCAVA) would raise serious equal protection/due process problem.  It also seems that Roe v. Alabama (which I write about in the Democracy Canon beginning at page 121) says that states cannot change election procedures already in progress (except to cure a constitutional violation).

It would set a terrible precedent to cancel an election because the party in power expects to lose.

In the special context of the 17th amendment, it provides that for special election to fill Senate vacancies, “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 legislature has already directed how the election should take place, and so unless one adopts the argument (which was made by some during Bush v. Gore) that the state legislature has the plenary power to change the rules in the middle of an election/recount, the legislature has already directed how the election should take place.

There is also an argument that the 17th Amendment REQUIRES replacement elections. It cannot simply be cancelled with a temporary placeholder serving the remaining term.

While I don’t believe it would be constitutional to cancel this election in progress, I have written (much to the dismay of some of my friends who are Democrats) that if Moore withdraws, Republicans should be able to replace him on the ballot if there is a way to do so without disenfranchising military voters.  Voters should have a real choice in the election.

All of this appears to be merely an academic discussion right now.  Moore says he’s not withdrawing, the Alabama’s governor says she won’t cancel or reschedule the election.





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