Allegations against Alabama Senate candidate Roy Moore keep piling up. At least six women have publicly accused Moore of sexually assaulting them, harassing them or making sexual advances toward them; five of the women were teenagers at the time when they say the misconduct occurred. Local reports now suggest that he was banned from a shopping mall because of this kind of behavior. National Republican leaders have spoken out against the candidate and several have withdrawn their endorsements. But the election is less than a month away. According to Alabama law, Moore can’t be removed from the ballot at this point, leaving the GOP with few options.
Those options, moreover, aren’t good ones. Each raises constitutional and democratic (small d) problems. There really isn’t a non-problematic path.
Option No. 1: Change the date of the election
The idea here: Move the election back to early next year, giving the GOP more time to pressure Moore to drop out and allowing the party space to get its act together with a new candidate. (Alabama law allows a candidate to be replaced on the ballot if they withdraw at least 76 days before the election.)
Objections to this option (which doesn’t seem likely to happen anyway) rest on a particular idea about democracy: That it is primarily about rules and structures. Changing the rules mid-game — particularly postponing an election when the dominant party might lose — violates those principles. According to this approach, when you assess the strength of a democracy, you shouldn’t rely too much on whether the results represent the public’s preferences faithfully as long as the rules are clear, fair and consistent. The U.S. Constitution is highly compatible with this view; the Constitution emphasizes institutions and processes over any specific principle or vision of government. Pushing the Alabama election back wouldn’t violate any specific provisions, but it would challenge the rule of law that forms the Constitution’s philosophical basis.
Option No. 2: Expel Moore from the Senate if he gets elected
Article I of the Constitution gives each house of Congress some latitude to determine what kind of behavior warrants a member’s expulsion, so this option is certainly Constitutionally and legally viable. But the idea that a group of elites in Washington would overturn the vote of the Alabama electorate seems a bit undemocratic. In particular, this option raises democratic hackles because voters would have put Moore into office while fully aware of the scandal. (As opposed to a scenario in which the allegations against Moore came to light after the vote, in which case senators could plausibly claim that they weren’t going against the popular will by expelling Moore.)
Similarly, Moore could formally drop out of the race. According to legal scholar Derek Muller, this would mean that the second-place candidate would win the seat if Moore received the most votes (votes for Moore would simply not count). This option seems marginally more democratic than the expulsion option, but the second-place candidate in that scenario would almost certainly be Democrat Doug Jones. If a Republican got the most votes but his withdrawal resulted in victory for the Democratic candidate instead, the result would conform to the rules of the democratic process but wouldn’t be representative of the state’s electorate.
Alabama has been a solidly Republican state for decades. In the event of an expulsion, the governor would be empowered under the 17th amendment to choose another interim senator and schedule another special election. This would likely lead to another Republican in the seat, while a formal withdrawal would almost guarantee success for Moore’s Democratic opponent. Unless there were another option …
Option No. 3: Attempt a write-in campaign
Could Republicans write in another candidate, such as Moore’s defeated primary opponent, Luther Strange? Yes. And recent history shows that a coordinated write-in campaign can succeed: That’s how Sen. Lisa Murkowski won a Senate seat in Alaska in 2010. In Alabama, a write-in campaign might represent the only opportunity for conservative Alabama voters to choose a candidate other than Moore who still reflects their political views.
On the other hand, it’s hard to say how a three-way race would play out. Murkowski was an incumbent senator from a well-known political family. In the Alabama race, where Moore has some defenders on the right, a write-in campaign might simply prove divisive. There’s a good chance it would split the conservative vote and help elect Jones. This isn’t exactly undemocratic, it just might not do much to address the GOP’s dilemma. Fifty years ago, the partisan element of this story might not have mattered as much. But as the two parties have gotten further apart ideologically, the stakes have changed. If a write-in campaign splits the conservative vote, Alabama could send someone to the Senate who will help enact an agenda that a majority of the state’s residents hate.
Democratic theory aside, politics is politics. Alabama Republicans aren’t entitled to a Senate seat. But they might not have nominated Moore if these allegations had been made public earlier.
There aren’t any clear solutions in Alabama, but the current problem illustrates a few key issues that go beyond the situation at hand. U.S. Senators represent both their constituencies and their national parties. But they are also officers of the Constitution, giving the entire nation some stake in the character and behavior of the people who hold these offices. When these different roles come into conflict, it’s hard to know what to do. The Constitution doesn’t lay out any explicit guidelines for senators’ conduct — but it does highlight the importance of local representation. More recently, party conflict on the national scale has become the main organizing force in politics. Alongside this development, elections have taken on a particularly significant role. As a result, if the senator from Alabama ends up with a D next to their name instead of an R, that matters much more than it might have in the 1970s or 1980s, and any institutional action that undermines the party preferences of most voters is likely to suffer legitimacy problems.
There is one course of action that would address most of these problems, and it’s the one path that’s clearly prohibited: allowing the state party to pick another candidate to put on the ballot. (This would, of course, go against the will of the primary voters who chose Moore in September, so it’s still not perfect.)
Alabama’s ban on last-minute changes dates back at least as far as 1975, and in 2014 the state legislature changed the rules to require even more lead time to replace a candidate (it used to be 45 days before the election and it was changed to 76). Party processes are often derided as undemocratic, but there are some advantages to letting parties pick their nominees — and change them late in the game if necessary. In practice, democracy has a lot of principles that are at odds with each other, and parties — not just partisan labels, but real, actual organizations — have often been useful in sorting those out, acting as intermediaries between voter concerns and elite expectations. They’ve provided a way to channel voters’ preferences while giving the system some structure.
An unintended consequence of limiting the state party is that it leaves the national party searching for creative solutions. As of Thursday morning, Senate Majority Leader Mitch McConnell was reported to be considering asking Strange to resign, in hopes of triggering another special election. It’s not totally clear if this is even feasible, but it’s hardly a grassroots solution. Asking for Strange’s resignation at this stage — essentially flipping over the board and demanding to start over — also has the same changing-the-rules-mid-game problems as option No. 1.
If the law didn’t tie the party’s hands in this way, Alabama Republicans would have a way to resolve the problem without risking putting someone in the Senate who has political views that diverge from those of most Alabama voters. As it is, though, the options available to the GOP are either democratically and Constitutionally problematic, or simply politically unpalatable.