[EL] authority of Alabama legislature to cancel U.S. Senate special election

[Steve Hoersting]

Due respect to the wing of my party, long in open revolt against the voters
of its base -- (Side bar: Circumstances and details aside, isn't
Strange/Moore a replay of Cochran/Daniel?) -- but the argument "Our guy
can't win because our real guy already lost" is hardly a precedent for
cancelling an election... that anyone wants to set in the United States of
America.

On Nov 11, 2017 2:35 PM, "Rick Hasen" <rhasen at law.uci.edu> wrote:

> There is also an argument that the 17th Amendment REQUIRES replacement
> elections. It cannot simply be cancelled with a temporary placeholder
> serving the remaining term:
>
>
>
> http://scholarlycommons.law.northwestern.edu/cgi/
> viewcontent.cgi?article=1051&context=nulr
>
>
>
>
>
>
>
> *From: *Rick Hasen <rhasen at law.uci.edu>
> *Date: *Saturday, November 11, 2017 at 11:29 AM
> *To: *Election Law Listserv <law-election at uci.edu>
> *Subject: *authority of Alabama legislature to cancel U.S. Senate special
> election
>
>
>
> Over on Twitter, Hugh Hewitt makes a pitch for Alabama to cancel the
> special election and allow Sen. Strange to complete the term:
>
>
>
> https://twitter.com/hughhewitt/status/929415700896198657
>
>
>
> (
> If @GovKayIvey <https://twitter.com/GovKayIvey> and legislature agreed to
> cancel special election and provide that appointed senator serves until end
> of term, tough to see how federal ct overturns law when the Moore/Jones
> objections arrive.)
>
>
>
> I responded that I doubted that a court would agree it is constitutional
> to cancel the election, and Hugh asked for authority in which a court has
> ordered an election to be conducted that a state legislature has cancelled.
>
>
>
> I cannot find any direct historical comparisons, but it seems to me that
> cancelling an election already in progress (military and overseas voters
> are already voting under UOCAVA) would raise serious equal protection/due
> process problem.  It also seems that Roe v. Alabama (which I write about in
> the Democracy Canon) says that states cannot change election procedures
> already in progress (except to cure a constitutional violation).
>
>
>
> In the special context of the 17th amendment, it provides that for
> special election to fill Senate vacancies, “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.”
>
>
>
> The legislature has already directed how the election should take place,
> and so unless one adopts the argument (which was made by some during Bush
> v. Gore) that the state legislature has the plenary power to change the
> rules in the middle of an election/recount, the legislature has already
> directed how the election should take place.
>
>
>
> What am I missing?  Do others disagree?
>
>
>
> Thanks.
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 <(949)%20824-3072> - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
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