Election law informs political strategy. The choices that parties, candidates, and voters make may change depending on the legal consequences of those actions.
A critically important legal questions looms over the Alabama Senate race. If embattled candidate Roy Moore withdraws, it may have one of two effects. There is uncertainty about which effect will take place. And it could entirely change the political strategy of Republicans.
Imagine for a moment, and it requires little imagination, that Mr. Moore remains in the race. Republican leaders have a choice: stick with Mr. Moore, or back a single write-in candidate. (A third might be to simply endorse Democratic candidate Doug Jones, but I'll assume Republicans want to keep the seat in the hands of someone who'll caucus with them.) There isn't much to think about in this scenario. It's purely a question of political strategy.
Imagine, instead, Mr. Moore withdraws from the race, or the party withdraws him as its nominee. (I should pause on the last point to note that I hardly know how the party has a mechanism to do so, and whether it can yank the rug out of its own nominee, apart from the fact that state law apparently authorizes it; I won't address how it might do so, or whether Mr. Moore might challenge it.)
What is the strategic decision from the Republican Party then? In my view, it all turns on what Alabama Code 17-6-21(c) means. And while the Secretary of State John Merrill has said one thing about what the law says, I'm not sure that's accurate. And if it isn't accurate, the strategy changes completely.
If Mr. Merrill's interpretation is correct: if an ineligible candidate (dead, disqualified, or withdrawn) receives the most votes, the election is declared null and void, and a new special election would need to be called. That is consistent with a long line of precedent in Alabama, as recently articulated in law as 2001.
In this scenario, the best Republican strategy is to "punch Moore." Consider the 2006 Florida race involving disgraced representative Mark Foley, where his name appeared on the ballot but actually stood for stand-in replacement Joe Negron, and where the slogan "punch Foley for Joe" instructed voters that voting for the disgraced candidate would be the best choice--because it wasn't for the disgraced candidate at all. The same held true in Missouri in 2000, where voters chose the deceased Mel Carnahan and knew that the governor would appoint a replacement (Mr. Carnahan's wife, he promised) before the special election to replace him.
A write-in candidacy is not as good a choice. That is, because some early votes have already been cast for Mr. Moore; finding a capable candidate is dicey; and getting write-ins generally is a challenge... why not reset the clock?
If my interpretation is right: HB 62 was enacted in 2014. It changed the rules for recounts for late-withdrawing candidates only. Its amended text, as I've emphasized, provides: "In the event that a candidate submits a notification of withdrawal after the applicable deadline, the name of the candidate shall remain on the ballot and the appropriate canvassing board may not certify any votes for the candidate." (Similar language is in (b) when a party withdraws a nominee.) That means, the second-best vote-getter actually wins--because there are no votes for the withdrawn candidate, because no votes for that candidate have been counted.
In this scenario, the best Republican strategy is to back a write-in candidate. Early votes for Mr. Moore have already been cast, which is a problem. But, if Mr. Jones would be the winner, their sole priority would be to back a write-in candidate who could win--not votes for Mr. Moore that would be thrown out.
And a strategy to vote for Moore would lead to a Jones win. It's exactly the reverse incentives.
The resolution of this question is of critical importance. Litigation assuredly will ensue: if Mr. Merrill's interpretation is heeded, Mr. Jones would surely sue to claim that he would win, and perhaps seek a declaration before the election. Voters would be confused, weakening Republican chances in the event they wait. Mr. Jones's supporters might be surprised if Mr. Merrill's interpretation carries the day and he is fighting an invisible candidate through December 12.
Regardless of which rule is the right one under Alabama law, it is critically important that this question be addressed sooner rather than later.