WASHINGTON ― Allegations that Roy Moore, the Republican Senate candidate in Alabama, sexually assaulted a 14-year-old and sought or maintained relationships with other teenage girls when he was in his early 30s has prompted calls from his fellow Republicans for him to step aside. But with the election only about a month away, options to replace Moore are limited.
Alabama election law prohibits a candidate from withdrawing from the ballot within 76 days before an election. The Senate special election between Moore and Democratic Party nominee Doug Jones is set for Dec. 12, or 33 days away. This means Moore cannot be replaced on the ballot with another Republican; not easily, at least.
Here are a few of the options for Republicans, based on information discussed by Pepperdine University election law professor Derek T. Muller on his blog and Twitter:
Moore can technically withdraw from the race, but he cannot be replaced on the ballot with a different candidate. If Moore were to withdraw, votes for him would not count. In that case, the Republican Party would not have a candidate who could receive votes on the ballot. If Moore withdraws from the race and still receives the most votes, the second-place finisher would be elected. Unless...
Someone launches a write-in campaign
Sen. Luther Strange (R-Ala.) was appointed by the former governor (who has since resigned over a corruption scandal) to fill the seat vacated by Attorney General Jeff Sessions, but Strange lost the Republican primary to Moore on Sept. 26. Strange was supported by President Donald Trump and some Senate Republicans. The main super PAC affiliated with Senate Majority Leader Mitch McConnell refused to endorse or spend money to help Moore.
It’s no surprise that Senate Republicans don’t really like Moore even though many of them have endorsed him since his primary victory. That sets up an easy change of heart for Republicans to back a write-in candidate. In fact, Sen. Lisa Murkowski (R-Alaska) has already spoken to Strange about a write-in campaign.
That is a process Murkowski knows well. She is one of three Americans to win a U.S. Senate seat by running a write-in campaign. In 2010, she lost the Republican primary to tea party challenger Joe Miller. This was a very similar situation to Moore’s defeat of Strange. Both Miller and Moore were backed by far-right groups railing against the Republican establishment.
Murkowski waged a write-in campaign and won the general election with 39.5 percent of the vote. The other two write-in winners were Sen. William Knowland, a Republican from California, in 1946 and Sen. Strom Thurmond, a then-Democrat from South Carolina, in 1954.
While Alabama technically has a “sore loser law” forbidding primary losers from running in the general election under the banner of another party, it allows a primary campaign loser to participate in the general election as a write-in candidate. Further, Alabama has no prefiling requirement for write-in candidates. That means Strange is eligible.
Strange could run regardless of whether Moore withdraws from the race. If Moore does not withdraw and Strange runs a write-in campaign, it sets up a race among Moore, the Republican; Jones, the Democrat; Strange, technically an independent; and any other write-in candidates. If Moore withdraws, the recipient of the most votes among Jones, Strange and other write-in candidates would win.
A replacement name goes on the ballot (which appears unlikely)
After winning the Democratic Party nomination for Senate in 2002, then-Sen. Bob Torricelli (D-N.J.) pulled out of the race on Sept. 30 among accusations of a string of ethical abuses. Democrats sued to put a different candidate on the ballot even though the legal time frame to replace Torricelli had passed.
The New Jersey Supreme Court ultimately issued a unanimous ruling allowing Democrats to put Frank Lautenberg on the ballot. Rick Hasen, an election law professor at the University of California-Irvine, wrote a defense of this decision for providing a real democratic choice to voters, which he calls the “Democracy Canon.” He said that canon could apply when the replacement of a candidate expands the ability of voters to properly choose elected representatives without disenfranchising other voters. (Not everyone agrees with this.)
In a blog post, Hasen initially said that he believed the same principles behind the New Jersey decision should apply in Alabama (i.e., Republicans should be able to replace Moore on the ballot with another candidate). But absentee ballots have already been sent out, most importantly to members of the military serving overseas. If those overseas voters have already cast ballots for a person who will no longer be a candidate, then they have essentially been disenfranchised.
“It may be too late to get them new ballots, making it much less likely Alabama courts would allow a replacement following a withdrawal,” Hasen wrote to HuffPost in an email.
Moore stays on the ballot. No one wages a write-in campaign. Voters will decide between Moore and Jones.