Rules of the Game – Alabama Senate Election
Judge Roy Moore is running for the vacant Senate seat in Alabama. This whole process has been tainted from the beginning, as the state fills the seat that was originally held by Jeff Sessions.
When Sessions was appointed attorney general, Luther Strange, Attorney General of Alabama, was appointed to the seat by then Governor Robert Bentley. This was step one in an ugly sequence, as Bentley was caught having a torrid affair in-office with a staffer, who seemed to be paid for her personal rather than professional abilities. The Alabama legislature moved towards impeachment, but Strange headed them off by promising prosecution from his office. Instead of prosecution, he accepted the Senate appointment from Bentley, and Bentley ultimately plead guilty to campaign law violations and resigned from office.
Luther Strange was a “tainted” candidate from the beginning of his term. In the Republican runoff for the Senate seat, he faced Judge Roy Moore. Moore, twice elected to the Alabama Supreme Court, was also removed from that Court twice. The first time was when he placed a monument to the Ten Commandments in the Court Building and refusing to remove it, the second time was when he ordered Alabama judges to refuse to marry gay couples despite the US Supreme Court ruling.
Strange received the endorsement of President Trump in the Republican primary race, but in spite of that support, Judge Moore defeated him. Now Moore faces Democrat Doug Jones, a former US Attorney for Northern Alabama. Moore also faces accusations from five women, who claim he sexually molested them when they were teenagers. One of the accusers was fourteen at the time of the attack.
Moore is trying to survive this scandal, and responsed by threatening the accusers with lawsuit, and inviting Breibart News to send investigators to challenge their claims. Meanwhile, Republican leaders are working to distance themselves.
The problem for them is that the Republican/Democrat margin in the Senate is 52-48. Even with the Vice President as the tiebreaking vote, it only takes three Republicans to defect and any legislation is blocked. The example: the attempt to repeal the Affordable Care Act, where a critical procedural vote was blocked by John McCain’s downturned thumb (along with Lisa Murkowski and Susan Collins.)
So what are the options for the Republicans? The Alabama state party could withdraw Moore as candidate. His name would be on the ballot (the deadline for replacement was October 11th) but if he won, his election would be null and void. If Democrat Jones won, then he would be the Senator.
Moore, of course, could withdraw his candidacy. That would have the same effect as the party withdrawing him, as his name would still remain on the ballot. What his withdrawal would allow is an attempt at a successful write-in campaign, perhaps by Luther Strange, that might have the possibility of defeating Jones. Senator Lisa Murkowski did this in her win of the Alaskan Senate seat. However, if the party withdrew Moore, but he refused to “quit,” then a Strange write-in campaign would split the Republican vote and guarantee Jones’s election.
If Moore “won” an election after either he or the party withdrew him name, then the Governor would set a new date for a special election.
The right thing to do? Moore should withdraw. If he doesn’t, the Alabama Republican party should withdraw Moore. If this doesn’t happen, then let’s hope the people of Alabama choose Doug Jones as their Senator.
But what if the Alabama party lets Moore stay on the ballot, and he wins. Would the Republican leadership in the Senate, already on the record as saying that Moore should withdraw, allow him to serve?
In 1969 the United States Supreme Court ruled that the Congress could not prevent newly elected members from taking their seats (Powell v. McCormack,) unless those members failed to meet the Constitutional qualifications (age, citizenship, residency) for membership. The Court did not rule on the ability of the Congress to remove members who were already serving, and the Constitution states they can be expelled by a two-thirds vote of the body.
Senators cannot be excluded in cases such as Judge Moore, but they can be expelled.
The last Senator actually expelled was in 1862, when Kentucky’s Lazarus W. Powell was removed for supporting the Confederacy. The last time it was attempted was 2011, when John Ensign was accused of financial improprieties while covering up an affair. Ensign resigned prior to an expulsion vote.
So, if Moore is chosen by Alabama to become Senator, and the Senate doesn’t want him, what can they do? They can vote by two-thirds to expel him, and upon his expulsion the Governor of Alabama could appoint a new Senator until such time as another special election is called.
And, for the deepest of Trump World conspirators, here is one possibility already floated by the White House. Moore stays in and wins the election, and the Senate allows him to take his seat, and then expels him. The President then fires (asks to resign) Attorney General Jeff Sessions, thus freeing Sessions to be re-appointed to the Alabama Senate seat by the Governor. This opens the Attorney General position for a candidate who is not recused from involvement in the Russia investigation. This puts the Mueller probe, and ultimately Mueller’s job, under his control.
It’s up to Alabama.
