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How Senate Republicans could stop Roy Moore from becoming a senator

On Moore, Senate Republicans have options — just no consensus.

Alabama GOP Senate Candidate Roy Moore Holds Election Night Gathering In Special Election For Session's Seat Scott Olson/Getty Images

Senate Majority Leader Mitch McConnell said on Monday that he believed the allegations against Roy Moore for sexual misconduct pursuing minors. Then National Republican Senatorial Committee Chair Sen. Cory Gardner (R-CO) said the Senate should “expel” Moore.

“If he refuses to withdraw and wins, the Senate should vote to expel him, because he does not meet the ethical and moral requirements of the United States Senate,” Gardner said in a statement.

These calls are growing among Republican senators. Sens. John McCain (R-AZ) and Todd Young (R-IN) also joined in the call to expel Moore. More Republicans are saying he should withdraw from the race — even suggesting Sen. Luther Strange (R-AL), who lost to Moore in the primary, run as a write-in candidate. (Strange has said it’s highly unlikely he will.) Finally, Sen. Jeff Flake (R-AZ) — who recently dropped out of his own primary reelection over distaste for President Trump — said Alabama voters should cast their votes for Democrat Doug Jones.

Moore, who is now denying multiple first-person accounts of sexual assault and misconduct with teenage girls, has refused to step aside, instead saying the story is “false” and insisting he will sue the Washington Post, which broke the story.

But even mired in scandal, and with his national party turning against him, it’s still highly possible Moore could win. The Alabama state GOP has rallied around him, and polls still show the former state Supreme Court judge in the lead.

Republicans have shown a willingness to look past a lot of Moore past actions. He’s previously questioned Keith Ellison’s (D-MN) position in Congress for being a Muslim, said he believes homosexuality should be illegal, and has twice been removed from his seat on Alabama’s top court for defying federal orders — and to all that, Republicans said they could tolerate Moore as long as he was a team player.

With the election less than a month away, there is a looming dilemma for Republicans that remains unresolved. Gardner’s idea about expelling Moore is likely the only real option Congress has control over — and it would be a major moment in the history of the institution. Here’s how it would work.

The push to “expel” Moore isn’t unprecedented — just extremely rare

If Moore wins the election and the Senate successfully pursues an expulsion vote, Moore would become the 16th person to have been forcibly removed from the Senate.

It’s an authority granted to the Senate in the Constitution: "Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member."

Meaning, following a review and recommendation from the Senate Ethics Committee, 67 senators would have to vote Moore out. Since Democrats would likely all support expelling Moore, 19 Republicans would have to join the effort for it to happen.

Such a vote hasn’t successfully passed since 1862, when Indiana Democrat Jesse Bright was expelled from the Senate for allegedly committing treason by writing a letter to “His Excellency, Jefferson Davis, President of the Confederation of States.”

There have been 15 senators in United States history expelled from the Senate — 14 of whom supported the Confederacy. Many more have been considered for such an action. Sen. Bob Packwood (R-OR) resigned in 1995 amid sexual harassment allegations, after being recommended for expulsion. Sen. Harrison Williams (D-NJ) resigned in 1982 after being convicted for bribery in the Abscam scandal the year before, and Sen. Truman Newberry (R-MI), threatened with more legal action over an overturned conviction for campaign finance violation, resigned after surviving an expulsion vote in the Senate.

Most recently, there have been rumblings of an expulsion push against Sen. Bob Menendez (D-NJ), who is currently on trial for bribery charges.

Expulsion is a power McConnell has. As Ronald Krotoszynski Jr., a law professor at the University of Alabama, wrote for the New York Times, “on principle and precedent, Mr. McConnell’s choice is clear”:

To the extent that Mr. Moore is entitled to a defense against expulsion, the Senate could initiate fitness proceedings now, before the election, to ascertain whether the accusations against him are credible; alternately, it could suspend his swearing-in until after the investigative proceedings are concluded. If Mr. Moore chose to ignore them, the Senate could simply conclude that he lacks the character and fitness to serve — as Mr. Moore, a former Alabama Supreme Court chief justice, surely knows, failing to contest an adjudicative proceeding results in a default judgment.

For now, there have been a growing number of calls for action but no definitive direction forward from Republican leadership.

So far, only one Republican has tried to stop Moore’s election by saying Alabamians should vote for the Democrat

While several, including McConnell, have suggested running a last-minute write-in Republican candidate in the race to oust Moore, Flake offered another option:

“If the choice is between Roy Moore and a Democrat, I would run to the polling place to vote for the Democrat,” he said Monday. He’s the only Republican to take that position so far.

Flake is a retiring senator who has made his exit a stand for morality and conservative values in the Republican Party. It’s a position a number of former — but not active — Republican officials took during the 2016 election, voting for Hillary Clinton over Donald Trump.

Others equated the moment to David Duke’s Republican Senate and Louisiana gubernatorial campaigns in the 1990s. At the time, faced with a former Ku Klux Klansman at the top of the Republican ticket, eight Republican senators publicly called for the election to go to the Democrat.

A year later, when Duke tried to run for governor, President George H.W. Bush stopped just short of an outright endorsement of the Democratic candidate:

I have got to be careful, because I don't want to tell the voters of Louisiana how to cast their ballot. ... When someone has a long record, an ugly record of racism and of bigotry, that record simply cannot be erased by the glib rhetoric of a political campaign. So I believe David Duke is an insincere charlatan. I believe he's attempting to hoodwink the voters of Louisiana, I believe he should be rejected for what he is and what he stands for.

While unlikely, it’s not impossible for Democrat Doug Jones, a US attorney for the Northern District of Alabama, to win the race. Since the allegations against Moore came out, the polls have tightened, and Jones, running a centrist ticket, has campaigned on working with Republicans.

Even so, Republicans have already gone to some lengths with Moore to avoid the election of a Democrat. And needless to say, Moore remains popular with Trump’s biggest fans. Trump has not offered this directive.