[EL] Question about whether absolute majority is required in Alabama Dec 12 special election

Thu Nov 16 10:22:52 PST 2017

As we all know, an absolute majority was required to win the nomination in the special primary for the vacant Alabama Senate seat.  Moore won the special primary run-off.  Is an absolute majority or plurality required to win the Alabama Dec 12 special election?  

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Fax: 650-941-9430

Email:  <mailto:john at johnkoza.com> john at johnkoza.com

URL:  <http://www.johnkoza.com/> www.johnkoza.com

URL:  <http://www.nationalpopularvote.com/> www.NationalPopularVote.com

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, November 15, 2017 8:13 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] ELB News and Commentary 11/16/17

The Latest Ploy GOP Considers to Avoid a Roy Moore Senate Problem Likely Violates the 17th Amendment <http://electionlawblog.org/?p=96022> 

Posted on November 15, 2017 7:15 pm <http://electionlawblog.org/?p=96022>  by  <http://electionlawblog.org/?author=3> Rick Hasen

I spent a good part of my Saturday afternoon tweeting and blogging in conversations with Hugh Hewitt about ways Republicans could deal with the Roy Moore mess.

At first Hewitt suggested cancelling the election altogether, and letting Strange just complete the term. I protested that cancelling an election already underway (military and other absentee  voter have already voted) is profoundly undemocratic and dangerous <http://electionlawblog.org/?p=95953> . It also appears to violate the 17th Amendmen <http://electionlawblog.org/?p=95961> t, which requires that an appointment of a temporary Senator be temporary, and that the state schedule a replacement vote.

Eventually Hewitt relented on this point (not because he thought it was undemocratic—indeed he seemed to believe Republicans are somehow entitled to Alabama’s two Senate seats without an election), but because he thought it would violate the 17th Amendment.

So he hit on another idea, and according to Politico it is an idea Republican leaders nationally are now weighing <https://www.politico.com/story/2017/11/15/roy-moore-republicans-alabama-senate-244961> :  get Luther Strange, the temporary Senator appointed to replace Jeff Sessions, to resign, and then with the new vacancy, declare this election void and start over.

I’ll talk about the political implications in a bit, but first the constitutional issue.  Here’s what the 17th Amendment says <https://www.law.cornell.edu/constitution/amendmentxvii> , in pertinent part:

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.

When Jeff Sessions resigned, that created a vacancy. Alabama law allowed the governor to fill that vacancy and to set the date for a special election. The governor (actually the predecessor) appointed Luther Strange and purported to set the date of the replacement election. (There’s some controvers <http://excessofdemocracy.com/blog/2017/11/sorting-out-the-alabama-senate-election-could-the-governor-reschedule-the-special-election> y about whether he had the authority to do this). The new governor reset (or properly set) the replacement election. We’ve had the primary, and now we are in the general election.

The governor was mandated to issue a writ of election. Because the writ of election has been already issued to fill a vacancy, the election goes forward under the language of the 17th Amendment. Temporary vacancies filled by the governor don’t change that. That’s a separate part of the 17th amendment and separate from the duty to issue the writ of election when there is the vacancy of an elected Senator.

Imagine if a temporary Senator appointed until an election died in office, after an election had been called. Under the 17th Amendment, we would not cancel the election already being held under the 17th Amendment requirement for a new election. We would just keep going. It’s the same thing for a voluntary resignation by the temporary Senator.

I’ve seen no authority to the contrary that a temporary Senator’s leaving office (for whatever reason) moots an election already in progress.

Now onto the political issues:

1.	If this gambit actually worked, and survived court challenge, Moore could run again and still win.
2.	Why would Luther Strange put himself through this again?
3.	Jeff Sessions wants no part of this.

Given the legal and political difficulties, the national Republicans have only a few choices. They can run a write-in election, maybe with Strange, against the wishes of the state party.  Moore could still win that, but more likely Republicans split the vote and the Democrat Jones wins.

Or Moore could win the election, and Republicans could try to expel him. There’s a Senate norm, apparently, of not expelling for conduct before taking office that voters knew about. Do Senators violate this norm?  It takes 2/3 to expel.  What if Democrats, either following this norm or sticking it to Republicans, don’t vote to expel?  Then Moore is a constant national story, and a reminder of What the Republicans are trying to avoid.

Or Moore could go on to lose, giving Jones the seat and moving the Senate majority to one seat.

No wonder Republicans are contemplating a constitutional Hail Mary.

[This post has been updated.]

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96022&title=The%20Latest%20Ploy%20GOP%20Considers%20to%20Avoid%20a%20Roy%20Moore%20Senate%20Problem%20Likely%20Violates%20the%2017th%20Amendment> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1> 

““Why Should I Go Vote Without Understanding What I Am Going to Vote For?” The Impact of First Generation Voting Barriers on Alaska Natives” <http://electionlawblog.org/?p=96020> 

Posted on November 15, 2017 3:34 pm <http://electionlawblog.org/?p=96020>  by  <http://electionlawblog.org/?author=3> Rick Hasen

James Tucker, Natalie Landreth, and Erin Lynch have written <http://repository.law.umich.edu/mjrl/vol22/iss2/5/>  this article for the Michigan Journal of Race and Law. Here is the abstract:

This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language speakers received, containing only the date, time, and location of the election, along with a notice that they could request language assistance. Those two pieces of evidence, when set side by side, showed the fundamental unequal access to the ballot. The lessons learned from Nick and Toyukak detailed below are similarly simple: (1) first generation voting barriers still exist in the United States; and (2) Section 203 of the VRA does not permit American Indian and Alaska Native language speaking voters to receive less information than their English-speaking counterparts. The voters in these cases had been entitled to equality for 40 years, but they had to fight for nearly a decade in two federal court cases to get it.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96020&title=%E2%80%9C%E2%80%9CWhy%20Should%20I%20Go%20Vote%20Without%20Understanding%20What%20I%20Am%20Going%20to%20Vote%20For%3F%E2%80%9D%20The%20Impact%20of%20First%20Generation%20Voting%20Barriers%20on%20Al> 

Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> 

Control of Virginia House of Delegates May Depend Upon Administrative Error in Having Voters Vote in Wrong Race <http://electionlawblog.org/?p=96018> 

Posted on November 15, 2017 3:28 pm <http://electionlawblog.org/?p=96018>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Oh boy <https://wtop.com/virginia/2017/11/as-va-heads-recounts-dems-ask-hundreds-wrong-ballots-fredericksburg/>  if this pans out:

In Fredericksburg, Elias said those results appear to show about 668 votes at precincts that Virginia’s redistricting statutes say are in outgoing House Speaker Bill Howell’s 28th District that instead were cast in Republican Del. Mark Cole’s re-election victory in the 88th District.

Elias, as the lawyer for the House Democratic Caucus, asked the state board of elections in a letter to “take all steps necessary to resolve these discrepancies.”

Asked what those steps would be, Elias said Democrats are first waiting to confirm that some voters were given the wrong ballots at Fredericksburg precincts 201 and 402.

However, the letter to the board asks that the results in House District 28 not be certified as scheduled Monday among other changes. Following a strictly party-line basis, if the number of votes for Democrat Steve Aycock had instead been cast for Joshua Cole and the Republican votes for 88th District incumbent Mark Cole had instead been cast for Bob Thomas, Joshua Cole would be leading in the 28th District.

While Elias said Democrats learned of the potentially incorrect precinct splits only since Election Day, state board of elections records show the same precincts were also split between the 28th and 88th districts in each election since new maps were drawn in 2011.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96018&title=Control%20of%20Virginia%20House%20of%20Delegates%20May%20Depend%20Upon%20Administrative%20Error%20in%20Having%20Voters%20Vote%20in%20Wrong%20Race> 

Posted in election administration <http://electionlawblog.org/?cat=18> 

“After Months Of Silence, A Blip Of Activity From Trump’s Voter Fraud Panel” <http://electionlawblog.org/?p=96016> 

Posted on November 15, 2017 3:20 pm <http://electionlawblog.org/?p=96016>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Sam Levine for HuffPost: <https://www.huffingtonpost.com/entry/trump-voter-fraud-probe-panel_us_5a0c6472e4b0bc648a0f5286> 

After over two months of silence <https://www.huffingtonpost.com/entry/trump-voter-fraud-probe-alan-king_us_59ef8424e4b0b7e632655fb5> , there was a blip of activity from President Donald Trump’s <http://www.huffingtonpost.com/topic/donald-trump>  voter fraud <https://www.huffingtonpost.com/topic/voter-fraud>  commission this week when a commissioner sent an email requesting information on voter fraud prosecutions by the Department of Justice <https://www.huffingtonpost.com/topic/us-department-of-justice>  and suggested the agency was not pursuing those types of cases vigorously enough.

J. Christian Adams, a commissioner and former DOJ official, sent an email to Andrew Kossack, a federal official charged with the panel’s administration, and copied all of the other commissioners Monday. He asked that Kossack request an annual public report from DOJ on election crimes as well as voter fraud cases the department has pursued over the last decade.

“As far as I can tell, there has not been a single prosecution whatsoever for any double voting or any non-citizen voting. I know with certainty that multiple instances of double voting and alien voting have been brought to the attention of the appropriate federal officials, and no action has been taken. Of course when you don’t prosecute crimes, you tend to have more crimes,” Adams wrote.

The email is significant because it is the only recent sign of action from the commission, according to Maine Secretary of State Matthew Dunlap (D), who forwarded the message to HuffPost; it also reveals one avenue of inquiry the panel may pursue. Even the panel’s own commissioners have said they have no idea <https://www.huffingtonpost.com/entry/trump-voter-fraud-probe-alan-king_us_59ef8424e4b0b7e632655fb5>  what it is working on or what it will eventually recommend to Trump. Several studies and investigations have shown voter fraud is not a widespread issue <https://www.brennancenter.org/analysis/debunking-voter-fraud-myth> .

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96016&title=%E2%80%9CAfter%20Months%20Of%20Silence%2C%20A%20Blip%20Of%20Activity%20From%20Trump%E2%80%99s%20Voter%20Fraud%20Panel%E2%80%9D> 

Posted in election administration <http://electionlawblog.org/?cat=18> , fraudulent fraud squad <http://electionlawblog.org/?cat=8> 

“Disabled voters’ ballots tossed because they didn’t write their names” <http://electionlawblog.org/?p=96014> 

Posted on November 15, 2017 11:06 am <http://electionlawblog.org/?p=96014>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Wichita Eagle <http://www.kansas.com/news/politics-government/election/article184447018.html> :

The ballots of 23 Sedgwick County voters were tossed out Monday under a state law that requires disabled voters to sign their own mail-in ballot envelopes.

County commissioners, acting as the canvassing board for last week’s election, reluctantly signed off on the decision to toss out the ballots. They said they think the law is wrong, but they had no choice.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96014&title=%E2%80%9CDisabled%20voters%E2%80%99%20ballots%20tossed%20because%20they%20didn%E2%80%99t%20write%20their%20names%E2%80%9D> 

Posted in voters with disabilities <http://electionlawblog.org/?cat=71> 

“Not Delivered Or Just Not Picked Up? Late Stafford, VA Ballots Roil Tight Race” <http://electionlawblog.org/?p=96012> 

Posted on November 15, 2017 8:42 am <http://electionlawblog.org/?p=96012>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Doug Chapin: <http://editions.lib.umn.edu/electionacademy/2017/11/15/not-delivered-or-just-not-picked-up-late-stafford-va-ballots-roil-tight-race/> 

A tight House of Delegates race in Stafford County (Quantico), Virginia is generating frustration and controversy after the county board of elections voted to exclude 55 absentee ballots that arrived in the election office on Wednesday morning after the 7pm Election Day deadline. The problem is, it isn’t clear when the ballots arrived at the post office – meaning that the delay could have been a failure of the county to pick up timely ballots. …

What’s unfortunate is that all of this controversy seems to have been avoidable had the election office implemented the bar code tracking program – which would have indicated that ballots were arriving on Election Night – and made a final sweep of post offices late in the day to pick up last-minute absentee ballots. Since they didn’t, now a close election (which happens) has become a controversial one (which doesn’t have to happen). Given that the race in question is one of three statewide that could affect partisan control of the House chamber, you can bet it will get full attention. There will almost certainly be more developments in this case, which may or may not change the outcome – but you know that it will create demands for explanations (and maybe change) at the Stafford County elections office. Hang on – and stay tuned …

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96012&title=%E2%80%9CNot%20Delivered%20Or%20Just%20Not%20Picked%20Up%3F%20Late%20Stafford%2C%20VA%20Ballots%20Roil%20Tight%20Race%E2%80%9D> 

Posted in election administration <http://electionlawblog.org/?cat=18> 

“Mueller puts spotlight on foreign lobbying” <http://electionlawblog.org/?p=96010> 

Posted on November 15, 2017 7:36 am <http://electionlawblog.org/?p=96010>  by  <http://electionlawblog.org/?author=3> Rick Hasen

The Hill reports. <http://thehill.com/business-a-lobbying/business-a-lobbying/360391-mueller-puts-spotlight-on-foreign-lobbying> 

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96010&title=%E2%80%9CMueller%20puts%20spotlight%20on%20foreign%20lobbying%E2%80%9D> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1> 

Big Package of Money in Politics Stories from Center for Public Integrity <http://electionlawblog.org/?p=96007> 

Posted on November 15, 2017 7:35 am <http://electionlawblog.org/?p=96007>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Kochs key among small group quietly funding legal assault on campaign finance regulation <https://www.publicintegrity.org/2017/11/15/21279/kochs-key-among-small-group-quietly-funding-legal-assault-campaign-finance> 

How slamming campaign finance laws helped Greg Gianforte get elected <https://www.publicintegrity.org/2017/11/15/21278/how-slamming-campaign-finance-laws-helped-greg-gianforte-get-elected>  

A modern history of campaign finance: from Watergate to ‘Citizens United’ <https://www.publicintegrity.org/2017/11/15/21255/modern-history-campaign-finance-watergate-citizens-united> 

The players who have shaped campaign finance over the decades <https://www.publicintegrity.org/2017/11/15/21270/players-who-have-shaped-campaign-finance-over-decades> 

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96007&title=Big%20Package%20of%20Money%20in%20Politics%20Stories%20from%20Center%20for%20Public%20Integrity> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> , campaigns <http://electionlawblog.org/?cat=59> 

Top Voting Rights Lawyer Anita Earls Announces Run for North Carolina Supreme Court <http://electionlawblog.org/?p=96005> 

Posted on November 15, 2017 7:23 am <http://electionlawblog.org/?p=96005>  by  <http://electionlawblog.org/?author=3> Rick Hasen

Big news <https://twitter.com/mel_bough/status/930808871899336705>  and a race to watch.

 <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D96005&title=Top%20Voting%20Rights%20Lawyer%20Anita%20Earls%20Announces%20Run%20for%20North%20Carolina%20Supreme%20Court> 

Posted in judicial elections <http://electionlawblog.org/?cat=19> 

-- 

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 - office

 <mailto:rhasen at law.uci.edu> rhasen at law.uci.edu

 <http://www.law.uci.edu/faculty/full-time/hasen/> http://www.law.uci.edu/faculty/full-time/hasen/

 <http://electionlawblog.org/> http://electionlawblog.org

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