11 Scenarios For How The Roy Moore Saga Could Play Out

Nov 18, 2017
Originally published on November 21, 2017 7:03 pm

Sexual assault allegations against Roy Moore have reverberated from Alabama to Washington, D.C.

Many Republican leaders have pulled their support from Moore. They include Senate Majority Leader Mitch McConnell of Kentucky, House Speaker Paul Ryan of Wisconsin and Colorado Sen. Cory Gardner, the head of National Republican Senatorial Committee, which is in charge of electing GOP senators.

McConnell, trying to save every seat possible in an already too-narrow-for-comfort majority, is gaming out scenarios to try to hold the seat long in GOP hands as Moore faces off against Democrat Doug Jones in a Dec. 12 special election.

But, speaking Friday, Kay Ivey, Alabama's Republican governor, said she saw no reason why the election should not proceed as planned next month. And she holds many of the cards in the Moore saga. She set the election date, and in a number of scenarios, she has some discretion to appoint someone else temporarily (Luther Strange had been appointed by her predecessor) or set a new special election date. Some have looked to her to help national Republican leaders out of the jam they are in — something Ivey has said she will not do.

"I will cast my ballot on [Dec. 12]," Ivey said. "And I do believe that the nominee of the party is the one I will vote for."

She said she is voting for Moore because "we need to have a Republican in the United States Senate" to vote for Supreme Court justices, among other things.

At the same time, Ivey said, "I have no reason to disbelieve any" of the women accusing Moore of sexual assault, many of whom were underage at the time.

That is the state of play as Moore has refused for more than a week to leave the race.

To try to map out how the Moore saga might end, here is a look at various scenarios some political observers have bandied about.

The analysis below is based on NPR's reporting and conversations with the Alabama secretary of state's office.

Scenario 1: Moore stays in the race, and Jones wins

This is quite possible. Both a recent Fox poll and an NRSC poll have Moore losing support. If Jones were to win, he would become the first Democratic senator elected from Alabama in 25 years. A Jones win would also narrow the gap from a 52-48 GOP advantage in the Senate to 51-49, opening up an avenue for Democrats to take back the Senate in 2018.

Of course, there is no telling exactly how Jones would vote. He would represent Alabama, a conservative state that went overwhelmingly for Donald Trump, and if Jones wants to have a chance at being re-elected, he most likely can't vote as a liberal.

Scenario 2: Moore wins, and GOP leadership attempts to block his seating

While those two recent polls show Jones leading, it's still Alabama. There are lots of Republicans in the state that Trump won overwhelmingly, so no Republican can ever really be counted out.

What's more: Automated polling has shown Moore and Jones in a tighter race. Could that mean Moore supporters would rather not tell a live pollster they're for him but are OK simply pressing a button? That is one theory. The point is: Moore could still win.

When it comes to the idea of blocking Moore from being seated if he wins, that very likely wouldn't stand. Democrats tried this in 2009 with Roland Burris, the Democrat appointed by disgraced former Illinois Gov. Rod Blagojevich, who tried to sell Barack Obama's Senate seat. Democrats refused to seat Burris, claiming his credentials weren't in order.

Here's the Senate on presenting credentials:

"Before a new senator can take the oath of office, an election certificate must be presented to the Senate to confirm that the person was duly elected. Issued by the secretary of state representing the state of the incoming member, the election certificate is affixed with the state's official seal and is delivered to the secretary of the United States Senate for official recording."

Democrats relented, and Burris was seated a week later.

Scenario 3: Moore wins and is seated, but the Senate expels him

Now things start to get really complicated.

Lots of powerful Republicans have lined up against Moore. Gardner, for example, has called for his expulsion should he win next month. The Senate needs a two-thirds majority to expel a member. But it's rare. It hasn't happened since the Civil War.

A dozen members since 1980 have actually continued serving while facing indictments. Others have resigned while facing expulsion — most recently John Ensign of Nevada in 2011 and Bob Packwood of Oregon in 1995. But Moore, who shows no signs of stepping aside before the election, would very likely be emboldened if he were popularly elected.

Expulsion could be in vogue. Some are calling for Sen. Al Franken's removal after an allegation of sexual assault arose against the Minnesota lawmaker on Thursday. McConnell referred two Democratic senators' conduct to the Senate Ethics Committee for review Thursday — Franken and New Jersey's Robert Menendez, whose corruption trial ended in a mistrial this week.

McConnell would very likely face pressure to at least take the same step for Moore. But the Ethics Committee generally only looks at conduct while a member was serving, not before — and the allegations against Moore are 40 years old.

Scenario 4: Moore wins, the GOP relents and lets him stay

Imagine a scenario in which major legislation was determined by a single vote, legislation you worked your entire career for. Imagine that a seat in a state reliably in your ideological corner suddenly went to the other party.

Would you sacrifice control of Congress for ... morals? Maybe.

But liberal writer Jonathan Chait asks readers to ponder the following:

"The Republican Establishment is trying to maneuver out of the binary choice of electing Roy Moore or putting their control of the upper chamber at risk by exploring exotic schemes, like voting to deny Moore a seat if he wins and replacing him with another appointed Republican. But if their machinations fail, they'll be faced with a stark choice.

"It's easy to feel superior about this when opposition to grotesque treatment of teenage girls lines up neatly with your own party's well-being. If you're a liberal, ask yourself what you would do if the circumstances were reversed. Give the other party a Senate seat and a possible majority, and forfeit your control of staffing the Cabinet, appointing judges and passing laws you consider vital for the country's future? Or allow one of the votes for those things to be cast by a sexual predator?"

Let's look at some of those exotic schemes ...

Scenario 5: The state party withdraws its support from Moore

First, we should say, the state party has shown zero willingness to do this at this point. But, for the sake of what ifs, here's how this could play out: If the party were to formally withdraw Moore's nomination, his name would still appear on the ballot. State law says that someone can only be added or replaced on a ballot 76 days prior to an election.

If Moore were to still win the most votes, his election would be a scratch. He would not be allowed to take a seat in the Senate because the state would not certify his election. (The Alabama secretary of state's office has confirmed this to NPR.)

The Senate would consider Moore's credentials to not be in order.

A new special election would be called. The governor would have to call one "forthwith," which is vague. All that means is quickly and within a reasonable time frame to be able to pull one off, but it's open to Ivey's interpretation.

In such a circumstance, the temporary appointment of Strange to the Senate seat could continue — even until Election Day in November 2018, according to Richard Hasen, a professor at University of California, Irvine and anchor of the Election Law Blog who has given some thought to the 17th Amendment implications. The 17th Amendment established the direct election of senators.

But such a scenario might leave the Alabama GOP open to a suit by Moore or his supporters for essentially not allowing Moore's candidacy to proceed in the Dec. 12 vote or for essentially disenfranchising Moore supporters.

Scenario 6: Strange wages a write-in campaign

This has been floated by some Republicans in Washington. Strange, who was appointed to the seat when Sessions was named Trump's attorney general, lost to Moore in the GOP primary.

There is a "sore loser" rule in Alabama that says no one who runs in the primary can run on the ballot in a general election. In other words, Strange can't run as an independent or in association with some other party that officially appears on the ballot. But that doesn't apply here. It would be legal to wage a write-in campaign.

Still, this would be incredibly difficult to pull off. Consider:

1. Strange lost badly in the primary to Moore, so he does not have a deep reservoir of support with the base;

2. A Strange write-in candidacy could grease the path for Jones, given it would likely split the GOP vote; and

3. The last successful Senate statewide write-in effort was in 2010 when Sen. Lisa Murkowski, R-Alaska, did it. But that was in Alaska. The Murkowski name is well-known in the state as her father was a senator there, too. And Alaska's population is less than 742,000. Alabama's is about 6.5 times that.

Scenario 7: Sessions wages a write-in campaign

Sessions would have some inherent advantages that Strange does not. It is, after all, Sessions' old Senate seat, which he held for 20 years before stepping down to become attorney general. So he is well-known statewide.

But there are a lot of pitfalls with this option, too. For one, there is no guarantee he would win. A write-in campaign is awfully difficult to pull off in a state with almost 5 million people.

Also, Sessions seems to want to stay attorney general, so would he really risk being out of a job altogether?

What's more, think of the dominoes that would fall if Sessions were to go through with a run. Whom could Trump nominate who would be confirmable as attorney general without a major fight amid the various Russia probes?

Scenario 8: Strange resigns, and a new special election is called

Politico notes, though, that "Senate Majority Leader Mitch McConnell and his top advisers are discussing the legal feasibility of asking Strange to resign from his seat in order to trigger a new special election."

First, it's not true that Strange resigning would "trigger" a special election. The governor would have the authority to call one if she so chose.

John Bennett, deputy chief of staff at the Alabama secretary of state's office, told NPR, "We are confident that governor's office can call a special again in that instance," if Strange resigned. "We maintain they [the governor's office] have the authority to do that."

But "their legal counsel has said that [a new election] is not reasonable or practical or a good use of resources."

Cost is a major consideration. This election — between the primary, runoff and general election — has already cost the state some $15 million, Bennett said.

By the way, one also has to consider that Moore could still run and win the primary again.

And maneuvers like this scenario also raise the possibility (as in Scenario 5) of either Moore or his supporters suing on the grounds that he has been harmed by having his otherwise-valid candidacy terminated or that his voters have been disenfranchised.

Scenario 9: Strange resigns, a new special election is not called, and the governor appoints a new senator and holds off on an election until November 2018

Now, we are deep in the weeds of Machiavellian machinations.

State law only says "forthwith." That is open to interpretation, and the governor has the authority to do the interpreting. She could appoint someone to the seat, and, because of the flexibility she has in the law, could hold off until the next scheduled election, which would be Election Day 2018. Cost could be an argument she could make for going that route. (So this scenario bears some similarity to Scenario 5 — with the exception that Strange is no longer in the mix and, instead, Ivey could temporarily appoint someone else to serve until the 2018 midterms.)

There is also no specified timetable in which a new special election would have to take place, Bennett noted.

But the governor's and the secretary of state's offices are aware that changing or canceling the Dec. 12 election and creating a new special election date could present legal problems, especially with regard to disenfranchisement. Absentee and overseas military ballots have already gone out, and some have already come back. And as this scenario (like Scenarios 5 and 8) essentially terminates Moore's candidacy, it also creates the possibility of a legal challenge by Moore.

Scenario 10: Moore drops out, but still gets the most votes

This is highly unlikely. Moore has dug in, holding events with faith leaders and saying he will not drop out. His wife reiterated that Friday, too.

But, for the sake of this hypothetical scenario, let's entertain this as a possibility. It's certainly not beyond the realm of possibility, especially if more women come forward with evidence that even he can't refute.

If this were to happen, the Dec. 12 election would still take place. Moore would still be on the ballot, because they're already printed. No one else could get on the ballot, because we are inside the 76-day window to add or replace anyone.

If Moore were to get the most votes, his election would be null and void. He would not be allowed to take a seat in the Senate because the state would not certify his election and his credentials would be considered not in order. And a new special election would be called.

Scenario 11: Moore drops out, and Jones gets the most votes

Jones would be certified the winner, and he would take the seat in the Senate.

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