As the special election to replace Attorney General Jeff Sessions’ vacant United States Senate seat heats up, and pundits suggest a variety of far-fetched scenarios, some Alabamians may be asking themselves “what does the law actually say?” After all, our elections must adhere to state and federal law if we value a fair electoral process. Others may be asking themselves how we reached this point in the special election. Regardless of your political persuasions, the process must play out by the letter of the law. This article will take a deeper dive into just what that law says.
Background: How We Got to Now
As Alabama voters are aware, a vacancy was created when President Donald Trump appointed then-Senator Sessions as Attorney General. Then-Governor Robert Bentley appointed Luther Strange to fill that vacancy on February 9, 2017. The appointment quickly came under scrutiny, as critics pointed to Strange’s ongoing investigation into Governor Bentley’s office. Strange’s appointment was temporary until a special election could be held, pursuant to Ala. Code § 36-9-7. Governor Bentley originally scheduled that special election for the regular election cycle in 2018; however, Governor Kay Ivey rescheduled that election for 2017. The Primary was held August 15 and the runoff September 26. The general election is scheduled for December 12.
Special Election Law in Alabama
Under Ala. Code § 36-9-8, the Governor shall call a special election to fill a senate vacancy if that vacancy is more than four months before a regularly scheduled general election. If the vacancy occurs between four months and 60 days before the next regularly scheduled election, the vacancy is filled at that election. If the vacancy occurs within 60 days, a special election must be held afterwards.
After Governor Bentley scheduled the election in 2018, many legislators asked the Legislative Reference Service to interpret the validity of the distantly scheduled election date. The Legislative Reference Service concluded that the election should be held “without delay.” In response, Governor Bentley’s office noted the Legislative Reference Service was merely a legal advisor to the legislature. The question became moot as Kay Ivey became Governor and quickly proclaimed a new, much closer, election schedule.
The Ballot Cannot be Reprinted – But Moore Can Be Disqualified or Withdraw
Under Ala. Code § 17-6-21, the state party executive committees must present the names of their respective nominees for a general election no later than 76 days before the election. After that date, the state party may still file an amendment to disqualify the candidate, and the Secretary of State must accept that amendment, but such a disqualification “shall not be cause for reprinting of the ballots.”
Thus, the disqualified candidate stays on the ballot, but “the appropriate canvassing board shall not certify any votes for the candidate.” Interestingly, the 76 day certification requirement was implemented only in 2014. This was done in order to comply with the Uniformed and Overseas Citizens Absentee Voting Act in order to allow overseas soldiers time to vote.
Another Question voters may be asking themselves is what happens if Roy Moore receives the most votes but withdraws his name or is disqualified by the state party? In this event, the votes for the withdrawn or disqualified candidate are not certified. Although a degree of ambiguity exists in this scenario, many commentators believe the second-place finisher would win the election.
Write-In Vote Process in Alabama
Under Ala. Code § 17-6-27, a voter may write-in “the name of any person whose name is not printed upon the ballot for whom the elector may desire to vote.” Nominated candidates from minor political parties may have their candidate’s name published in accordance with the Alabama Administrative Procedure Act. Write-in votes are “permitted only in non-municipal general elections” under § 17-6-28. A voter must write-in the name of the candidate whom they wish to vote for and then mark their ballot as a write-in vote. Further, write-in votes are only counted when “the number of write-in votes for a specific office is greater than or equal to the difference in votes between the two candidates receiving the greatest number of votes for the specific office.”
Assuming the number of write-in votes meets the threshold, the write-in votes are counted as provisional ballots are counted. Any qualified elector who actually voted in the election may also request that the write-in votes be counted under § 17-6-28. Moreover, write-in candidates are not required to file pre-election filings as regular party candidates are require to file.
What if I Misspell a Write-In Candidate’s Name?
Some commentators have noted ‘Strange’ is easier to spell than ‘Murkowski’ in reference to Alaska Senator Lisa Murkowski’s successful write-in campaign and the speculation surrounding a possible write-in campaign by Senator Luther Strange. Still, what is the process for evaluating write-in spelling? According to the Alabama Secretary of State’s office, the spelling must be close enough so that the voter’s intention can be reasonably determined. A full name must be used, but initials are accepted for first and middle names.
Uniformed and Overseas Citizens Absentee Voting Act
The Uniformed and Overseas Citizens Absentee Voting Act, or UOCAVA, requires that military members, their families, and U.S. citizens living overseas get a chance to vote in federal elections. The law simplifies voting for these Americans, allowing them to register to vote and vote absentee simultaneously through a post card. The UOCAVA further requires that validly-requested absentee ballots reach the absentee voters no later than 45 days before the election. The Attorney General is also authorized to bring a civil action to enforce the UOCAVA if its provisions are no followed.
A Judicial Exception?
Other commentators have pointed to the Torricelli debacle as a template for carving out a judicial exception to the 76-day requirement. In 2002, New Jersey Senator Torricelli withdrew from re-election after absentee ballots had been printed and mailed to overseas voters. The New Jersey Supreme Court allowed the Democrat Party to replace Torricelli’s name on the ballot in direct contravention of state law with the reasoning that it fulfilled the legislature’s intent to satisfy the will of the people.
Of course, such a scenario would be highly unlikely in Alabama but the Alabama Republican Party could press the issue by filing suit, nonetheless.
Alabama’s Sore Loser Law
Under Ala. Code § 17-9-3(b), “the judge of probate may not print on the ballot the name of any independent candidate who was a candidate in the primary election of that year and the name of any nominee of a political party who was a candidate for the nomination of a different political party in the primary election of that year.”
In essence, you cannot have your name printed on the ballot in the general election after you were a losing candidate in a primary. As an important distinction, this law does not prohibit voters from writing in a candidate, but only the probate judge from printing ballots with the losing candidate’s name. Some have pointed to a memorandum written by then-Attorney General Luther Strange as authority that Luther Strange would not be lawfully allowed to run as a write-in candidate; however, that memorandum is merely persuasive at best.
The special election for U.S. Senate carries enormous consequences as the Republicans maintain a very narrow majority with 52 Republicans. If the Senate seat goes to Democratic candidate Doug Jones, it will be the first time Alabamians elected a Democrat to the Senate since Richard Shelby in 1992. Shelby switched to the Republican Party two years later in 1994.
Even if the state Republican apparatus wanted to change their party’s nominee, their options are very limited. It’s too late to reprint ballots according to state law. The GOP could pursue a judicial exception as noted above, but such a ruling would be unlikely. Finally, any candidate could wage a write-in campaign. Regardless of pre-election wrangling, and no matter who your candidate is, the most important thing is to vote on December 12.