January 12, 2018 | Professor Derek Muller‘s article, “Legal Quandaries in the Alabama Senate Election of 2017,” (SSRN) will be published in the Alabama Law Review (forthcoming 2018). The article considers the circumstances of the special election in Alabama.
Abstract of “Legal Quandaries in the Alabama Senate Election of 2017”:
President Donald Trump’s decision to nominate Alabama Senator Jeff Session as his Attorney General resulted in a vacancy in the Senate and triggered a special election. The special election, however, revealed the many complexities of the Seventeenth Amendment, special elections generally, and Alabama state law specifically.
This Article traces a series of legal quandaries that arose from the special election, some of which remain open questions for future Alabama elections, and for United States Senate elections more generally. Part I examines the scope of the Alabama Governor’s power to call for a special election under the Seventeenth Amendment and state law. Part II scrutinizes the complications for replacing a late-withdrawing candidate and for counting votes cast for a candidate who resigns. Part III identifies proposed gambits, from postponing the election to write-in campaigns, that never came to fruition. Part IV examines the timing surrounding certification of election results in Alabama. Part V looks at gaps in Alabama’s recount and election contest procedures. Finally, Part VI identifies the most significant opportunities to clarify Alabama law and to properly interpret the Seventeenth Amendment to avoid uncertainty in future elections.