Doug Jones’ Alabama Senate Victory Should Be Certified Senate Winner on Dec. 28; What Options Will Roy Moore Have?

Alabama Secretary of State John Merrill announced that the official certification of Doug Jones as the winner will be Dec. 28, allowing Jones to be sworn in when the Senate reconvenes on January 3.

Roy Moore has not yet conceded (an act of no formal legal significance) and he has been making noises about a legal challenge (likely more about fundraising than anything else).

So what could Roy Moore do?

  1. Moore could try to file an election contest under state election law, making some kind of claim of voter fraud or other irregularity. Aside from the fact that this is an extreme longshot, given that we have seen no evidence of any problems in Alabama’s election that could swing the election from Jones to Moore, it does not appear from the Alabama elections code that Moore is entitled to file an election contest in state court.  Only losing candidates for certain state offices, not federal offices, can file an election contest. (The Secretary of State may believe otherwise, given his earlier erroneous interpretations of Alabama law on this point.)
  2. Moore could seek to contest the election outcome in the U.S. Senate. The Senate is constitutionally given the power to determine these kinds of disputes, but given that there appear to be no grounds for contesting the election outcome, this would go nowhere (even putting aside the fact that Republicans have no appetite for keeping Moore around).
  3. Moore could file a federal lawsuit claiming some kind of constitutional problem with how the election was conducted. Here the problem is the simple lack of evidence that Moore could point to in federal court.

In short, Moore does not appear to have any viable options to contest the election outcome.  But that might not stop him from trying (or fundraising).


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