We’ve developed fantasy baseball, then fantasy football … and now we have fantasy politics. With disaster approaching in Alabama, Republican leadership on Capitol Hill and the White House have put their heads together to figure out how to get the December 12th election called on account of extremely bad weather. After strategizing a write-in campaign for a completely uninterested Jeff Sessions, the only Hail Mary play left would be an attempt to cancel the election by pushing Luther Strange into an early resignation:
With less than four weeks until the special election and no sign that the party’s besieged nominee will exit the race, Senate Majority Leader Mitch McConnell and his top advisers are discussing the legal feasibility of asking appointed Sen. Luther Strange to resign from his seat in order to trigger a new special election.
McConnell aides express caution, saying they’re uncertain whether such a move, one of several options being discussed, is even possible. Yet the talks underscore the despair among top Republicans over relinquishing a seat in deep-red Alabama, further diminishing their slim Senate majority. …
Republicans are engaged in a flurry of back-channel conversations. President Donald Trump spoke with McConnell on Wednesday morning and the Alabama race was a major topic of discussion, said several people briefed on the conversation. On Tuesday morning, Shelby spoke with Alabama Gov. Kay Ivey. During the discussion, Ivey dismissed the possibility of moving the date of the Dec. 12 election, an idea that had been floated by senior Republicans.
The fulcrum for this maneuver comes straight out of Alabama law governing the replacement of US Senators, but in a way that has not yet been tested. Unless a vacancy occurs between 60-120 days before a regularly scheduled general election, the governor chooses an interim appointment and sets an election date at the governor’s discretion. If Strange created a new vacancy by resigning now, at least theoretically it would reset the process and allow Ivey to make a new appointment and schedule a new election — one which would almost certainly no longer include Roy Moore.
As far as anyone knows, that law or any like it have never been used to cancel a special election that had already been set to fill a previous vacancy in the same Senate seat. Even theoretically, it’s at best untested, and it would inevitably land in court. Hugh Hewitt has argued that it’s another version of the “Torricelli option”:
sue and argue the statute only applies to original vacancy. Rs would counter with hypothetical “What if appointed senator died…” Good argument would be had. I think the better argument is new vacancy requires new primaries/general. #TorricelliRules
— Hugh Hewitt (@hughhewitt) November 16, 2017
The “Torricelli option” refers to the legal fight that ensued in New Jersey when Robert Torricelli withdrew from the 2002 general election in the midst of a scandal after the expiration date for ballot changes in state law. Democrats demanded that state election officials replace Torricelli with then-retired Senator Frank Lautenberg on the ballot, and the sued when they refused. The New Jersey supreme court ruled that state law should be overridden to give voters a real choice in the election, and Lautenberg went on to win easily.
Needless to say, this isn’t a terribly strong precedent. The court was not asked to cancel an already scheduled election, and in the present situation, no candidate has voluntarily withdrawn (yet, anyway). If Moore withdraws and the GOP petitions to replace him with Strange, this might make for a more apposite supporting parallel. Note, however, that New Jersey Democratic Party et al v Samson was a state-level case, with no direct precedential weight in Alabama.
As of right now, though, the question would be whether the governor can cancel an election in which both parties have participated solely because of a new vacancy for the same seat, and for the purposes of rescuing one party from its terrible choice in candidates. That has nothing to do with Torricelli, and everything to do with demanding a do-over based on expected results. It seems very far-fetched to believe a judge would go along with this scheme, even assuming Ivey plays along with it … and at least for now, she doesn’t seem interested in doing so. As of earlier this week, Ivey declared that she’s still supporting Moore in the December 12th election.
And yet, here we are with the GOP’s best minds looking for a way out of the debacle to come. Never mind that Strange is desperately needed in the US Senate to pass tax reform, as McConnell needs every aye he can get between now and its final floor vote. That’s because every option looks worse than picking this fight in court, as Byron York points out today. In fact, option 6 — having Doug Jones win the seat — might not even be the worst of the six scenarios he lays out. Having the GOP fail to cancel an election after last-minute chicanery could be the worst option, perhaps even worse than succeeding at it and setting precedents for election cancelations that even the Civil War didn’t provide. Now that’s desperation.
Update: Kay Ivey actually poured ice-cold water over this idea earlier:
However, Alabama Gov. Kay Ivey threw cold water on that idea in an interview Monday with AL.com.
“The election date is set for Dec. 12. Were he to resign I would simply appoint somebody to fill the remaining time until we have the election on Dec. 12,” she said.
According to one source on background, the state law does not work in practice as those contemplating this move hope. The election is set, and short of a Moore withdrawal, there’s not much the GOP can do about it now.