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 After musing about possibilities in the Alabama Senate special election, and digging deeper into vote-counting for a withdrawn candidate, a new scenario has popped up: the governor postponing the election.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

Sorting out the Alabama Senate election possibilities: what happens to the votes of a withdrawn candidate?

I blogged earlier about some of the possibilities in the Alabama Senate election. One question that arose was, what would happen to the votes of a candidate who withdrew but whose name could not be replaced on the ballot? (Let me explain at the outset I view the likelihood of Roy Moore voluntarily withdrawing, or the Alabama Republican Party invoking its power to remove him, as quite unlikely at this point, but the possibility remains.)

I explained that I thought that the votes for that candidate would not count and the second-place finisher would win. But a commenter pointed me to a recent statement from Secretary of State John Merrill:

What happens if Moore is withdrawn as the nominee but still receives the most votes?

Merrill said the election would be null and void. The second-place finisher would not win.

It would then fall to the governor to call another special election.

. . .

But there might be some question about that scenario. John Bennett, spokesman for Merrill, said one interpretation of the law is that if Moore is no longer a valid candidate but receives the most votes, Jones would be declared the winner.

Bennett said the official position of the secretary of state's office is that the election would be null and void, as Merrill said.

Let me start with the text of Alabama Code 17-6-21(c), emphasis added: "The notification deadline for persons who do not wish to accept nomination in a primary election is 76 days before the date of the election. A person who does not wish to accept nomination in a second primary election shall submit the notification set forth in subsection (a) before the printing of absentee ballots. The notification deadline for persons who do not wish to accept nomination in a general election is 76 days before the date of the election. 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.)

The text of that statute, in my view, anticipates that the votes for the withdrawn candidate simply do not count. That would mean that the second-best finisher wins the election.

To explain some of the distinction, this is a centuries-old dispute about what to do with the votes in such a case: the "American rule," or the "English rule."

Many jurisdictions, including Alabama for a time, would count the votes for a deceased, ineligible, or otherwise withdrawn candidate. In the event that candidate won, the election would be null and void, the office declared vacant, and a new election held. Consider State v. Stacy (Ala. 1955): "In the case before us, where it affirmatively appears that the appellant received only forty-nine of the total number of votes, but the deceased candidate received the other 1,590 ballots cast for this office, we think the better rule is that the election for this office be held null and void because of the disqualification (by death) of the winning candidate." The Court there explained that voters might well not "waste" their votes by voting for a dead candidate; they may well know that the election would be found null and void, and they might prefer a subsequent special election. Another good reasons for this approach, too--consider that in Stacy, the runner-up received just 49 votes among over 2000 ballots cast! While we may accept plurality winners, a winner with such a tiny percentage of the votes may strike the public as something less than legitimate. Accord Banks v. Zippert (Ala. 1985); Ala. A.G. Op. 2001-041.

That was, for instance, the case of Mel Carnahan in Missouri in 2000, who died the week before the election and received the most votes. That led to the office being declared vacant, the governor appointing a Senator, and a special election was later held.

If that's historically true in many places in the United States, and in Alabama, what's the alternative? The "English rule" permits disregarding the votes cast for a deceased, ineligible, or otherwise withdrawn candidate. The second-best vote total actually wins, because those ineligible votes are thrown out.

It appears that Alabama has adopted the "English rule" in the context of late withdrawing candidates. That is, when a candidate withdraws within the 76-day window, votes for that candidate are simply not totaled. It is as if voters have cast blank votes (or "undervotes") for the office.

The Alabama legislature in 2014, with unanimous support, passed HB 62, which added this language to 21(c):

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Note that the textual addition of the phrase at the end. It gives a new legal effect to late withdrawal--that is, the canvassing board "may not certify any votes for the candidate." That means, that candidate cannot receive the most votes. And that means, the "American rule" is not at play.

In the event Mr. Moore withdraws, then, any votes for him are not certified. The vote totals from the canvassing board would reflect vote totals for Doug Jones and for any write-in ballots cast. Whichever candidate among those names receives the most votes would win.

Note, too, this only extends to late-withdrawn candidates. In the event a candidate, say, died before Election Day, the "American rule" would still apply--the office would be declared vacant and a new special election would need to be called.

I have tried in vain to find any meaningful legislative history behind the addition of 21(c), but I think this is the best interpretation--and one that Mr. Merrill's spokesman admits is a possible interpretation.

Sorting out the Alabama Senate election possibilities in light of Roy Moore

After recent scandalous news surrounding Alabama Senate candidate Roy Moore, some have wondered what might happen in Alabama. There are just two candidates on the ballot, Mr. Moore and Doug Jones.

Mr. Moore cannot be replaced. Alabama Code 17-6-21(c) requires any withdrawal to occur at least 76 days before Election Day; we're about a month out now. It's the same deadline for parties to replace their nominees under 17-13-23. It used to be 45 days until a series of 2014 amendments.

It's understandable that we have pretty early withdrawal deadlines. The dramatic expansion of early and absentee voting around the country, coupled with the long lead time to print ballots and then mail them, especially to overseas uniformed military personnel, has pushed these deadlines out.

But, withdrawing does have an impact, even if no can can replace him. That is, if Mr. Moore withdraws from the race, votes for him would not be counted: "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."

UPDATE: Per an exchange with @Taniel on Twitter, I construe this to mean that in the event Mr. Moore withdrew, but still received the most "votes," the second-best winner would actually win the race, because those "votes" for Mr. Moore would not be counted. It would be as if there were no candidate at all. It does not mean that there is now a vacancy in the office. I think that's the best reading of 21(c) (and this provision was added in 2014, with no meaningful legislative history that I can find). FURTHER UPDATE: It appears that Alabama in 2014 overrode several previous state supreme court holdings on this subject. Alabama had adhered to the "American rule," which would count votes for deceased, ineligible, or other withdrawn candidates, and in the event that candidate won, the office would be declared vacant and a new election held. The "English rule," a version of which Alabama adopted, disregards votes cast for such candidates. I have found no particular motivation for doing so (as of yet!).

UPDATE: There's a similar set of rules in 21(b) for instances in which the party withdraws its support for the nominee. It isn't clear to me from the Alabama Republican Party how it might go about doing that--in a sense, stripping the nomination from Mr. Moore to render all votes cast for him as null. But, it is also there in the statute.

Anyone may be a write-in candidate in Alabama. Alabama law does not require pre-election filing requirements for write-in candidates. Its write-in law hasn't been used much but was recently heavily revised in 2016. That means that anyone can start a campaign right now and run as a write-in. The last write-in to win a senate election? Lisa Murkowski in Alaska, 2010. Before that? Strom Thurmond in South Carolina, 1954.

Alabama's "sore loser" law does not prevent Luther Strange from running a write-in campaign. Alabama does have a "sore loser" law that prevents a candidate from appearing on the general election ballot if he lost the primary election. But that condition does not apply to write-in candidates--only candidates whose names might appear on the ballot. The Alabama Secretary of State has made this clear. Some have mentioned memoranda from Mr. Strange expounding upon the "sore loser" law. But those refer to printing the name on the ballot; they do not extend to write-in candidates.

A court could pull a "Torricelli" from 2002. In 2002, Robert Torricelli withdrew 35 days ahead of the election. State law prohibited filling vacancies within 51 days of the election. The New Jersey Supreme Court in Samson concluded that in order to effect the state legislature's desire that the popular will of the people control the outcome of the election, and given that it would be feasible to replace Mr. Torricelli's name on the ballot despite some absentee ballots already having been sent out, it would be acceptable to create a judicial exception to the statute and permit a replacement.

There are good reasons, I think, why these kinds of judicially-created post hoc exceptions are not terribly persuasive to me; Bob Levy in 2002 offers his scathing critique here. In contrast, Professor Rick Hasen offered a defense of such moves under the Democracy Canon, to extend deadlines to benefit voters.

Regardless of what one thinks is right, it's a claim that might be made to the Alabama courts. Even there, complications remain. As Professor Hasen notes, many overseas voters have already received ballots, and it might be a challenge to get them replacement ballots in time for the election.

In the event Mr. Moore withdraws, however, recall that votes for him do not count. A court balancing the equities (assuming it's persuaded to create a judicial exception to the replacement statute) might conclude that in the event the candidate has withdrawn, and the overseas voters' votes for that candidate might not count anyway, it may be the case that replacing a candidate would be acceptable.

If this occurred, then, I think, Alabama's "sore loser" law would still remain in effect, and Mr. Strange could not be the replacement. But I'm less confident of how this might work....

In the event I have updates, I'll revise this post as necessary.

In today's New York Times: "Don't Use the Ballot to Get Trump's Tax Returns"

In today's New York Times, I have an opinion piece entitled, "Don't Use the Ballot to Get Trump's Tax Returns." It begins:

Opponents of Donald Trump were outraged when, flouting recent tradition, he refused to disclose his tax returns during the 2016 presidential campaign. They remain outraged that he continues to decline to do so as president.

Now that political outrage is being channeled into legislation. Lawmakers in at least two dozen states have introduced bills that would compel presidential candidates to disclose their tax returns or be left off the ballot in 2020. The New Jersey Legislature recently passed such a bill, which sits on Gov. Chris Christie’s desk.

Mr. Christie should veto the bill, and other states should abandon their efforts. Making the disclosure of tax returns mandatory is bad policy and, in this form, probably unconstitutional.

Other recent pieces on this subject include those by Vik Amar and Rick Hasen. I approach this a bit differently--proponents, including Laurence Tribe, have styled this as a "ballot access" case, rather than additional qualifications (which, I think, are even more likely to be found unconstitutional), and I've addressed it from that perspective.

In today's WSJ: "Libertarians and Greens Can Win--Even If They Lose"

In today's Wall Street Journal, I have an opinion piece entitled, "Libertarians and Greens Can Win--Even If They Lose." It begins:

Gary Johnson and Jill Stein have a difficult task—though this election year it might be easier than most. The trick for third parties in American politics is convincing voters that they aren’t “wasting” ballots by supporting the Libertarian or Green Party candidate, since neither will make it to the White House.

But the unpopularity of Donald Trump and Hillary Clinton has provided the Libertarians and Greens with a new argument: Political parties that meet defined benchmarks on Election Day are given certain advantages under state and federal law. If Mr. Johnson and Ms. Stein manage to secure 5% of the popular vote—plausible given current polling—their parties will reap significant benefits.