Hasan: Alabama Can’t Cancel the Special Election

One of the ideas being floated around to rid the Republican party of their Roy Moore problem is for the Alabama governor and legislature to cancel the special election to fill Jeff Sessions’ seat in the Senate. Rick Hasan, one of the foremost election law scholars in the country, says that’s likely unconstitutional.


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 beginning at page 121) 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.

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.

He does say, however, that if Moore withdraws from the race on his own, the Republican party should, under the law, be allowed to replace him on the ballot rather than having to mount a write-in candidacy. Hasan is one of the two election law experts I trust the most on such things (Gerry Hebert is the other), so I would presume he’s right about this.

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