ALSO SEE: AL.com Publisher Rejects Moore
Demand to Stop Reports on Him

The Latest Republican Gambit to Get Rid of Roy Moore Is Nakedly Unconstitutional

By Charles Pierce, Esquire

20 November 17

Hold the election and elect Doug Jones. It's the only way.

efore we begin, here is the 17th amendment to the Constitution in its entirety:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

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.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The 17th is an important part of the legacy of the Progressive movement of the late 19th and early 20th centuries. It took the election of senators out of the hands of the invariably corrupt state legislatures and gave it over to the people themselves. William Randolph Hearst was one of its first proponents. Oregon and Nebraska both adopted direct election of senators before the amendment even passed. And the 17th still gets up the noses of people for whom less self-government is the best self-government. There is a strong school of ultra-right thought that calls for the repeal of the 17th. In fact, Mike Huckabee is on board, and the repeal of the 17th is one of Mark Levin’s “Liberty Amendments," which likely would get a vote in the new constitutional convention that Levin and others are pushing.

As much mockery as the whole “I was in Trig class” episode might deserve, there is a far more serious issue come to the fore in the ongoing saga of ol’ Judge Roy Moore. The national Republican party is just now tumbling to the notion that ol’ Judge Roy has no intention of dropping out of the race. So they are desperately trying to MacGyver a solution that would keep Moore out of their august ranks—you know, those august ranks that already count in their numbers Tailgunner Ted Cruz and Senator Aqua Buddha from Kentucky.

The latest gimcrack is to have Big Luther Strange, whom Moore beat in the primary after Strange had been appointed to replace Jefferson Beauregard Sessions III, resign his seat and then to have Alabama Governor Kay Ivey declare that the seat is vacant (again) and, therefore, that an entirely new special election be held at a later date. On his blog, election law specialist Rick Hasen explained why this stratagem dances all over the intent, original and otherwise, of the 17th Amendment.

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 controversy 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.

In short, the 17th Amendment pretty much precludes the possibility of declaring an election null because you’re afraid your party might lose—or, in this case, you’re afraid your state is on the verge of sending a mall-haunting religious fanatic to the U.S. Senate. For which Kay Ivey should be eternally grateful, because she shouldn’t want any part of this.

Ivey’s done her job. She’s called the special election and now it’s only a couple of weeks away. If she were to step in now behind this clumsy—and unconstitutional—finagling, she’d be volunteering for a political suicide mission. She’d lose the most important part of her native political base instantly. Ivey and her state would be embroiled in so many lawsuits that her great-grandchildren would be giving depositions. And, even if she didn’t care about all of that, where would you set the odds that Roy Moore runs and wins again anyway? I make it no worse than 6-5, and then Ivey would have half the state and a U.S. Senator angry at her, and Moore would be beholden to absolutely nobody except the angry Bible-bangers who stuck with him.

Nope. Run the election and hope for the best, gang. And the best is Doug Jones’s winning and, if you’re a Republican, getting the seat back in three years. Everything else is embarrassing.