Republicans have few options to replace alleged sexual predator Roy Moore as Senate candidate

Alabama law is not on the GOP's side.

Republican U.S. Senate candidate and alleged sexual predator Roy Moore (AP Photo/Brynn Anderson, File)
Republican U.S. Senate candidate and alleged sexual predator Roy Moore (AP Photo/Brynn Anderson, File)

The Washington Post reported on Thursday that a woman named Leigh Corfman says Alabama Republican U.S. Senate candidate Roy Moore molested her when she was 14 years old and he was 32. Three other women also told the Post that Moore attempted to initiate sexual abuse against them when they were teenagers and he was in his 30s. Top Republicans, including Senate Majority Leader Mitch McConnell (R-AL), have since called on Moore to withdraw as a candidate “if these allegations are true.”

Republicans have few options, however, to remove the accused sexual predator as their candidate and replace him with someone else.

The special election to fill this seat — which was previously held by Attorney General Jeff Sessions — is scheduled for December 12, and Alabama law places strict limits on efforts to switch candidates this close to an election day.

Pursuant to Alabama law, “a nomination for a candidate in a primary or general election shall be finalized by the respective state executive committees not later than 76 days before the primary or general election.” An attempt to amend the names on the ballot filed after this date, moreover, “shall not be cause for reprinting of the ballots.”

“The Republican Party does not have any options,” Alabama Secretary of State John Merrill told ThinkProgress Thursday, adding that many absentee ballots were sent out in October. “This vote is scheduled for December 12, this vote is going to occur December 12, and Roy Moore’s name is going to be on the ballot as the nominee for the United States Senate. Nothing’s going to change that.”

State law does suggest that a candidate could effectively withdraw from the race after the 76-day deadline, but the GOP is unlikely to like the consequence of this move. Such a candidate will “not be replaced by the name of another candidate, and the appropriate canvassing board shall not certify any votes for the candidate.” So Moore’s name would still appear on the ballot, but any votes cast for him would effectively be tossed out.

As election law expert Rick Hasen notes, there is at least one precedent for a state supreme court permitting a state party to replace their candidate after a similar deadline had passed — the New Jersey Supreme Court allowed Democrats to swap candidates in 2002. But New Jersey’s law was drafted less strictly than the Alabama law at issue here. It lacked such definitive language as “shall be finalized” or statements that a party’s decision to change candidates “shall not be cause for reprinting of the ballots.”

A second option is that Republicans could attempt to run a write-in candidate against Moore. Sen. Lisa Murkowski (R-AK), who won a write-in election in 2010, is reportedly advising Sen. Luther Strange (R-AL) to mount a write-in race against Moore and Democratic candidate Doug Jones.

Strange lost the primary for this seat to Moore, and Alabama has a “sore loser” law preventing candidates who lose a primary election from appearing on the ballot as an independent. However, this sore loser law does not apply to write-in candidates, so Strange could potentially go down this road, Merrill said.

“Anybody can engage in a write-in campaign if they choose,” he said. “[Strange] cannot appear on the ballot again but a write-in is not appearing on the ballot.”

Write-in races are notoriously difficult to win, however, for the obvious reason that the candidate’s name is not on the ballot. Moreover, while Moore was the favorite to win this election before the explosive allegations against him became public, the polls are close enough that Jones’ chances would improve significantly if the Republican vote was split between Moore and Strange.

A third option is that Moore could agree to step down if elected, and allow the seat to be temporarily filled by Alabama’s Republican governor. This would be similar to the “punch Foley for Joe” campaign that Republican Joe Negron ran in 2006. After Congressman Mark Foley (R-FL) left office due to an underage sexting scandal, Negron was unable to get his name on the ballot to replace Foley. So Negron urged his supporters to cast a vote for Foley in order to effectively leave the seat open for Negron. (It didn’t work; Democrat Tim Mahoney was elected to fill the seat.)

This is only a viable option, however, if Moore voluntarily agreed not to take the seat if he’s elected to the Senate. Given Moore’s long history of refusing to obey court orders, he’s not at all likely to be a team player.

Finally, Senate rules permit senators to be expelled from the body by a two-thirds vote. So Republicans could conceivably take a humiliating vote to remove one of their own and then hope that a Republican is elected to fill it.

In an interview Thursday, Merrill — Alabama’s highest ranking elections official — questioned the Washington Post’s reporting on Moore.

“I don’t know how much validity these claims have to them,” he said. “I know Judge Moore to be a man of character and integrity and I find it very shocking that this information is being introduced at this time in his career when he actually has been on the ballot dozens of times before this election cycle, and it’s just now being introduced. That’s very, very surprising to me.”

“People make things up all the time,” he added. “Do I think it’s possible they made this up? I do.”

Additional reporting by Kira Lerner. This story has been updated with comment from John Merrill.