Newer Republican Plan to Deal with Roy Moore Has a Better Shot at Constitutionality Than Last Proposal

I’ve written about the likely unconstitutionality of a plan which would have temporary Senator Luther Strange resign from his seat, and have the Alabama governor call a new election. This seems pretty clearly to violate the 17th Amendment.

But buried in this NYT story on Trump standing by Roy Moore is a somewhat different plan:

Mr. McConnell even enlisted Washington campaign lawyers with experience in Alabama elections to devise a four-page memo outlining a legal avenue to block Mr. Moore’s path, but the White House counsel’s office ignored the document entirely. …

The campaign lawyers commissioned by the Senate leader last week sent a memo to the White House counsel, Donald F. McGahn II, arguing that, based on Alabama precedent, if Mr. Strange were to resign, Ms. Ivey could appoint a new senator. They also made the case that Ms. Ivey was within her rights to delay the special election.

“Our recommendation is to combine Steps 1 and 2: Strange resigns; the governor fills the vacancy with a new appointee; and the governor delays the special election to give the new appointee time to run as an independent candidate,” the lawyers wrote.

As I understand it, this would not be calling a new election, meaning that the Democratic and Republican nominees would stay in place. It would instead delay the election and give the newly appointed temporary Senator a chance to run a write-in campaign.

Now I am not certain if delaying an election already in progress (military and other absentee voters have already voted) solely for political reasons would be permissible under Alabama law and constitutional (under the Equal Protection and Due Process clauses). But it seems less of a constitutional affront than the original idea of a do-over.

The point seems moot.  The election is Dec. 12, and there’s no sign of any of this happening.


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