On December 12, the voters in Alabama are scheduled to select a new U.S. Senator in a special election to fill the seat formerly held by Jeff Sessions, now the Attorney General, and temporarily held by appointed Senator Luther Strange.
In the very red state, the Real Clear Politics average shows Republican candidate Roy Moore leading Democrat Doug Jones by nearly five percentage points. Most observers believed Moore would win and the national Democratic Party has shown some reluctance to invest in the race. No Democrat has won a Senate seat in Alabama since Senators Howell Heflin in 1990 and Richard Shelby in 1992 (Shelby switched to the Republican Party two years later).
On Thursday, The Washington Post rolled a hand grenade into the middle of the Alabama contest. It reported allegations by four women. In one case, the allegation is that he had sexual contact with a 14-year-old girl in the 1970s.
Reaction in Washington was swift (although often conditional). Majority Leader Mitch McConnell, for example said, “If these allegations are true, he must step aside.” The president’s press secretary Sarah Huckabee Sanders declared, “Like most Americans, the president does not believe we can allow a mere allegation, in this case one from many years ago, to destroy a person’s life. However, the president also believes that if these allegations are true, Judge Moore will do the right thing and step aside.”
Moore has denied the accusation and stated emphatically that he has no intention of withdrawing from the race. On Thursday, he tweeted, “Our children and grandchildren’s futures are on the line. So rest assured — I will NEVER GIVE UP the fight!”
Although the Alabama Republican Party can disqualify Moore, this seems unlikely. Under Alabama law, it is too late to remove his name from the ballot. A write-in candidacy is possible, but with Moore remaining in the race, it would be exceedingly difficult to win.
Given the reaction of Republican leaders in Alabama so far, it seems Moore will continue. While the incident has likely opened the door to a Jones victory, this is by no means certain.
If Moore is elected by the voters of Alabama, the hot potato will fall to the U.S. Senate. Will the Senate seat him?
Article I Section 5 of the Constitution states, “Each House shall be the judge of the elections, returns and qualifications of its own Members.” An effort would likely be mounted to deny the seat to Moore on the grounds that he is morally unfit to hold the office.
A motion to seat Moore in the Senate would be privileged meaning it could be brought up to the exclusion of other business. The matter is debatable. This means it could potentially be filibustered.
In 1969, however, the Supreme Court in Powell v. McCormack interpreted “qualifications” extremely narrowly. They held that the House in this case, could not exclude a duly elected member unless he failed to meet the Constitutional requirements of age, citizenship, or residence.
This would seem to indicate that if the Senate were to exclude Moore, it would likely not stand up in court.
However, also under Article I Section 5, the Senate is empowered to expel a member (already seated). This would require a two-thirds vote, however.
Anything other than Roy Moore being defeated at the ballot box or stepping aside will result in a bloody political fight with no winner.
Moore’s alleged behavior is disgusting and there is only one right outcome. Moore should never be a U.S. Senator.
Richard A. Arenberg is a Visiting Lecturer in Political Science and International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas (D-MA), Carl Levin (D-MI), and Majority Leader George Mitchell (D-ME) for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg was co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named “Book of the Year in Political Science” by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published “Richard A. Arenberg: Oral History Interviews” in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter @richarenberg.