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Mitch McConnell’s latest idea to redo the Alabama special election is likely unconstitutional

Why the “get Luther Strange to resign and force a new special election” scheme won’t work.

Alabama GOP Senate Candidate Roy Moore Holds Campaign Event In Fairhope, Alabama Scott Olson/Getty Images

Republican senators are desperate to solve their Roy Moore problem — so desperate that they’re reportedly considering a maneuver to, essentially, postpone the special election for the Alabama Senate seat that they now could lose.

Moore has remained defiant as allegations of sexual misconduct pile up against him, leaving lawmakers in Washington clutching at just about any chance that might sideline Moore — while also trying to protect the should-be-guaranteed seat from falling into Democratic hands.

The latest idea Republicans are reportedly discussing, described in Politico, demands impressive political acrobatics:

With less than four weeks until the special election and no sign that the party’s besieged nominee will exit the race, Senate Majority Leader Mitch McConnell and his top advisers are discussing the legal feasibility of asking appointed Sen. Luther Strange to resign from his seat in order to trigger a new special election.

Kay Ivey, Alabama’s governor, has already signaled she’s not on board with the idea. The plan — to basically get a special election do-over with a different candidate — has the whiff of the undemocratic. And as Richard Hasen, a professor of law and political science at the University of California Irvine, pointed out on his Election Law blog and explained to Vox, it might even be unconstitutional.

A good plan, except for the Constitution

It’s worth remembering how we got here: The Alabama Senate seat is open because Jeff Sessions stepped down in January, two years into his six-year Senate term, to serve as attorney general in the Trump administration. The state’s governor at the time, Robert Bentley, appointed Luther Strange to serve in his stead, and set a special election for November 2018. Then Bentley resigned amid a sex scandal, and his successor, Ivey, rescheduled the election to December 12, 2017.

Moore got caught up in his own scandal, too late for Alabama Republicans to replace him on the ballot before the special election. So Republicans have proposed other plans — from putting Sessions back in the seat to expelling Moore from the Senate if he’s elected — to try to get Moore out of the race. The suggestion that Strange should resign is just the latest.

If Strange resigned, the theory goes, Ivey would have to pick a new interim replacement and schedule a new special election.

But there’s a problem here, according to Hasen: the 17th Amendment, which allows for the direct election of senators. (Until the amendment was ratified in 1913, state legislatures appointed senators.) The amendment also describes what happens should a senator die, resign, or otherwise leave the seat vacant before the end of the term:

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.

In other words, the governor has to call a new election so the state’s voters can directly decide whom they’d like to be their next senator, rather than being one short and waiting until the end of the scheduled term. The governor can appointment someone to serve in the Senate in the meantime, just to make sure the state is still represented, but only until the new election.

The Alabama special election has followed that playbook so far. But the idea that Strange could resign and create a new vacancy to prompt another election “seems to go against the text and purpose of the 17th Amendment,” Hasen said.

“The purpose of the amendment is to provide for the election of senators,” he explained. “It does provide for some representation in the interim so the state doesn’t lose its representation until the election could be held — but it doesn’t say a vacancy by a temporary senator restarts everything over.” Alabama could go forward with the special election even if Strange resigned — it would be about to fill the seat permanently, after all.

There’s also nothing in Alabama state law that would make this seem feasible, Hasen added. He gave the example of a death — if the temporary senator died before the special election occurred (and he or she wasn’t on the ballot), the vote likely wouldn’t be rescheduled.

“This theory is inconsistent with the whole point of the 17th Amendment to guarantee direct election, because then you could just thwart the will of the 17th Amendment by just having a series of temporary senators,” Hasen said. “Keep resigning, call an election, cancel the election — that just seems silly.”

He pointed out that the resign-and-reschedule plan also runs the risk of disenfranchising voters. Absentee and military voting started October 18 in the Alabama election, so ballots have already been cast; calling a new election would effectively nullify those votes. What makes this even knottier: If Republicans are attempted this scheme, they’d be doing so with the implicit intent of saving the seat for their party.

“It seems if the only permissible reason here to take away a voter’s right to vote in the election is to preserve the seat for the political party, then that’s illegitimate,” Hasen said. “You’re actually denying voters representation.”

Republicans have an option — a legal one — if Moore refuses to step down, and that’s the write-in ballot. There’s precedent for this: Alaska Sen. Lisa Murkowski won an unlikely write-in victory as an independent after a Tea Party-backed candidate won the GOP Senate nomination in the state in 2010. But it obviously comes with the big risk of potentially splitting the Republican vote and handing Democrat Doug Jones the seat.

Moore, meanwhile, is outraged — and if he’s referring to a new election, he might have something of a point.

Constitution or no, Alabama probably won’t go for this

Besides the constitutional implications, it doesn’t seem that there would be anything to stop Moore from running in the next special election — and maybe winning it — thus creating a déjà vu nightmare scenario.

What’s more, the Alabama Republican Party has stood by Moore as he’s shot down allegation after allegation, which now includes at least eight women coming forward publicly with stories of sexual assault or harassment, many of them teenagers.

The Alabama secretary of state’s office said the governor is the only one with the authority to call the election and make the determination about postponing it. “She said that’s not reasonable or practical at this point,” a spokesperson said.

Or as Gov. Ivey bluntly told AL.com, “the election date is set for Dec. 12.”

Were Luther Strange to resign, she said, “I would simply appoint somebody to fill the remaining time until we have the election on Dec. 12.”

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