Sorting out the Alabama Senate election: could the governor reschedule the special election?

Whew. After musing about possibilities in the Alabama Senate special election, and digging deeper into vote-counting for a withdrawn candidate, a new scenario has popped up: the governor postponing the election. As reported in the New York Times:

State law gives the governor broad authority to set the date of special elections, and Ms. Ivey, who is a Republican, already rescheduled the Senate election once, after inheriting the governor’s office in April when her predecessor, Robert Bentley, resigned in a sex and corruption scandal. Ms. Ivey’s advisers have not ruled out exercising that power again, according to Republicans in touch with her camp, but she has signaled that she would like reassurances of support from the White House before taking such an aggressive step.

. . .

But there is no apparent precedent for rescheduling an election so close to the planned vote, Republicans acknowledged. In addition to state election laws, such an extreme step could also run afoul of federal voting rights law.

The thought goes, I suppose, that a delay would give extra time for Mr. Moore to withdraw (voluntarily or involuntarily), and such a withdrawal, which might occur outside of the 76-day withdrawal window, would permit the party to replace Mr. Moore's name on the printed ballot.

Could this actually be the case? I'm not so sure. (I'll only address here a proposal to postpone the election, not to cancel it, and it would not require any action on the part of the legislature. I won't address whether independent Alabama constitutional rights would prevent this action from the governor in a voting rights context. I'll also emphasize, a I did in my last post, that this appears quite speculative, as Governor Kay Ivey has indicated no intention of changing the election date. Finally, I'll only discuss Alabama state law. I won't discuss the possibility that this act might run afoul of federal law or the United States Constitution.)

First, Ms. Ivey "rescheduled" the special election after Governor Robert Bentley resigned. Mr. Bentley had previously scheduled the special election to coincide with the 2018 regularly-scheduled primary and general elections. Each did so ostensibly pursuant to Alabama Code 36-9-8: "Whenever a vacancy occurs in the office of senator of and from the State of Alabama in the Senate of the United States more than four months before a general election, the Governor of Alabama shall forthwith order an election to be held by the qualified electors of the state to elect a senator of and from the State of Alabama to the United States Senate for the unexpired term. If the vacancy occurs within four months of but more than 60 days before a general election, the vacancy shall be filled at that election. If the vacancy occurs within 60 days before a general election, the Governor shall order a special election to be held on the first Tuesday after the lapse of 60 days from and after the day on which the vacancy is known to the Governor, and the senator elected at such special election shall hold office for the unexpired term."

But Mr. Bentley faced a legal challenge to his scheduling of the special election. He claimed that he had authority to push the election back to the general election. Challengers noted that he must "forthwith order an election" if the vacancy occurred "more than four months before a general election," and that only in instances where the vacancy occurred between four months and 60 days of the next scheduled general election could the governor hold the special election concurrent with the general election. A memorandum from the Legislative Reference Service concurred.

These are interesting matters of statutory interpretation under state law. But if Mr. Bentley lacked the power in the first place (that is, his original writ of election was inconsistent with Alabama law), then Ms. Ivey's pronouncement for an earlier special election was not a "change" or a "reschedule" of the special election; it was the first valid writ of election issued. While the Times describes this as a "rescheduled" election, the legal effect matters. If Mr. Bentley's original election lacked the force of law, Ms. Ivey practically (but not legally) rescheduled the election.

So, is there anything that constrains the governor? At least some constraints appear in the statute and its interpretation (apparently flouted by Mr. Bentley). But consider other relevant portions of the messy Election Code.

Consider constraints on the governor's power under Alabama Code 36-9-9: "The Governor . . . must give notice of a special election to elect a senator for an unexpired term in the same manner and for the same time as is prescribed for special elections to fill a vacancy in the office of members of the House of Representatives in Congress."

That refers to Alabama Code 17-15-3: "All special elections provided for by this chapter are to be ordered by the Governor, who must issue writs of election, directed to the judge of probate of the counties in which such election is required to be held and must specify therein the district or county in which, and the day on which, such election is to be held; the cause and object of the same; the name of the person in whose office the vacancy has occurred and, in all cases in which a special election is directed in a district composed of more than one county, such election must be directed to be held on the same day in each county." And Alabama Code 17-15-4, "The Governor must give notice of any special election for representatives in Congress, or state officers, by proclamation." Finally, Alabama Code 17-15-7, "Special elections are to be held and conducted, the returns thereof made and certificates given, and, unless otherwise expressly provided, regulated in all respects by the provisions in relation to general elections."

It's very hard for me to read these statutes together to suggest that the Alabama legislature has empowered the governor to schedule and reschedule, unilaterally, without constraint, special elections. First, 36-9-8 already places some timing restraints on the governor. Second, portions of Title 17 limit the discretion given to the governor, as special election are largely designed to resemble general elections.

The Seventeenth Amendment includes this relationship between the governor and the legislature: "When vacancies happen in the representation of any state in the Senate, 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.

I think the best way of harmonizing these statutes, and the way that events have transpired so far, is that Ms. Ivey's scheduling of the special election was the first valid proclamation from the governor (and that Mr. Bentley's proclamation was void under state law); and that she lacks the power to change the date. But, others may differ... and I'm always happy to consider competing theories or a more complete understanding of state statutes.