The Roy Moore Escape Hatch

A bill introduced in the Alabama legislature could help Republicans expel Roy Moore from the Senate and still hang onto his seat.

Republican candidate for U.S. Senate Judge Roy Moore and his wife Kayla wave to the crowd during a campaign rally in Fairhope, Alabama, U.S., December 5, 2017.
Roy Moore and his wife, Kayla, wave to the crowd during a campaign rally in Fairhope, Alabama, on Tuesday.

Jonathan Bachman/Reuters

With just one day until Alabamians head to the polls, Republicans remain conflicted about their embattled Senate candidate, Roy Moore, who has been accused of child molestation and sexually predatory behavior. Senate Majority Leader Mitch McConnell, fearing the public-relations consequences for his Republican conference, has already tried to throw Moore overboard once and promised that, if elected, Moore would have “an immediate issue” with the chamber’s ethics committee. President Trump, meanwhile, has actively campaigned for Moore, saying, “We need somebody in that Senate seat who will vote for our Make America Great Again agenda.”

An overlooked bill in the Alabama legislature could allow Republicans to do both—expel Moore from the Senate and still keep the seat in their column. In January, Alabama legislators plan to consider a proposal that would give the state’s Republican governor the power to fill Senate vacancies without requiring special elections.

Under current Alabama law, if Moore were expelled from the Senate, the vacancy would force the governor to call another special election, and Moore could simply run again, prolonging the public-relations disaster for the party. But under a new state law due to be considered next month, Republicans could expel Moore and then hand-pick the next senator from Alabama without a special election. The new senator would then have a two-year window to build up name recognition and goodwill before running for a full term in 2020.

For McConnell, it could be a win-win: Senate Republicans could take a public stand on behalf of women (and against child predators) without losing a crucial vote in the process.

Here’s how it would work.

First, the Senate would have to expel Moore from its membership by a two-thirds vote. Expulsion would start in the Senate Ethics Committee with an investigation pursuant to Article I, Section 5 of the Constitution. That clause empowers the Senate to “punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”

In its history, the Senate has only expelled 15 members from its ranks, all but one of whom was removed for supporting the Confederacy during the Civil War. Over a dozen other senators have been subject to expulsion proceedings, and most recently, Nevada Republican John Ensign resigned after being threatened with expulsion for financial misconduct related to an extramarital affair. No senator has been expelled for offenses committed prior to taking office, but courts would likely defer to the Senate, which has the power to set the rules of its own chamber, if it chose to expel Moore.

If two-thirds of the whole Senate votes to expel Roy Moore, the seat he occupied would once again be vacant.

By Alabama law, U.S. Senate vacancies are filled, subject to minimal restrictions, by a special election. That’s how we got to this point in the first place: When Sen. Jeff Sessions was appointed as attorney general of the United States, Governor Kay Ivey appointed Luther Strange to the seat and scheduled the upcoming election.

If Governor Ivey were to call for another election, there would be no way for Alabama Republicans to prevent another Moore candidacy. Unlike an official who is impeached (who could be banned from future service), an expelled senator is still eligible to serve in the federal government—and he can run for the same seat he previously occupied.

Indeed, a defiant Moore would stand a strong—and perhaps stronger—chance of winning a second time around, leaving Senate Republicans in a bind. Alabamians would have twice elected Moore to the Senate. Would his colleagues really want to expel him again?

But if the Alabama legislature barred special elections before Moore was removed, the governor could replace Moore with a senator of her choosing. This senator would have two years to curry favor with voters before Moore (or anyone else) could mount a challenge.

A bill authored by Alabama state Rep. Steve Clouse would repeal Section 36-9-8 of the Code of Alabama, which currently provides that when vacancies arise, “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.”

The new proposal also amends Section 36-9-7 to provide that “the Governor shall appoint a person to the office to serve until a successor is elected at the next general election occurring more than one year after the vacancy occurs … ” In this case, the next general election more than one year after the vacancy would be in 2020, when Jeff Sessions, had he served out his term, would have been up for re-election.

The bill will be formally introduced on Jan. 9, 2018, less than a month after the special election and less than a week after the new term of Congress begins. If it were enacted, Alabama would join more than 30 states that allow their governors to appoint senators to fill vacancies. The bill was originally proposed as a cost-saving measure before Moore had even won the primary, a fact that could give cover to those who support it as an end-run around Moore’s election. Eliminating special elections could save the state millions of dollars in administrative costs, supporters might argue.

The bill has also garnered support as a way to shield Alabama from the often unwelcome national spotlight that comes with special elections, such as the one Alabamians are experiencing now. State Sen. Gerald Dial, a supporter of the legislation, told an Alabama newspaper eliminating special elections would prevent “people in New York, California, [and] Texas” from interfering in their political processes.

The simpler solution, of course, would be for Republican leaders to encourage voters to support Democrat Doug Jones instead of a sexual predator who happens to be a Republican. But sadly, in an age where many Republicans see Democrats as worse than accused child molesters, things aren’t so simple.