Timing the Special Election for US Senate – by Taxpayer Tom

Here is my take on the timing of the special election to fill Senator Sessions’ seat when he resigns to become the attorney general of the United States some time after Donald Trump becomes president on January 20.

I say do it in November 2017.

With front loaded confirmation hearings, Session could be sworn in as AG as early as January 21. To avoid underlap in a narrowly divided US senate, our governor should appoint his interim replacement on the same day Sessions resigns from the senate. Per section 116 of the Alabama Constitution, the governor cannot appoint himself to fill a US senate vacancy.

The governor is then required by law to call a special election to fill the seat until Sessions term would have expired in early January 2021. The timing of the special election is specified by Section 36-9-8 of the Code of Alabama. I put this in a table at the bottom of this article, reformatted for ease of reading and reference.

Because the vacancy will arise more than four months before the next general election in November of 2018, only the section of the code marked A matters; however, I do take the sections marked B and C to mean that the governor cannot wait until November 2018 for this special election because otherwise the section marked B would be superfluous, a condition frowned upon by those who practice law.

Because forthwith means immediately, when Sessions resigns the governor must immediately order a special election for the unexpired term. And I take immediately to apply to the election and not merely the speed with which governor tells us when the election will be. And to me, immediately means that the election should be held as soon as practicable consistent with current practice.

Current practice is that we have a filing period, a primary campaign period long enough to allow for printing ballots and requesting and distributing absentee ballots, a primary election followed by primary runoff election six weeks later, a general election campaign period long enough to allow for printing ballots and requesting and distributing absentee ballots, and a general election.

So how long should this take? I say about 7 months.

I think the filing period should be at least one month to allow candidates to spin up on federal campaign law, to test the wind for campaign finance, and to make a thoughtful decision without running afoul of the law.

In 2014 and 2016 we have had a period of four months for the primary campaign, but I think two months should be enough for a state-wide campaign for a single office election.

We usually allow 6 weeks following the primary election before the primary runoff election.

Like the primary election, I think at least two months should be allowed for the general election campaign.

But this does not mean we should have the special election in late August 2017.

I think it would be cruel to over lap the special election campaigns with the February through May session of the state legislature. Doing so would tend to discourage worthy state lawmakers from trying for the US senate, potential candidates who know the problems of Alabama better than members of Congress, potential candidates who are part time lawmakers whose regular, private employment would suffer from a simultaneous campaign and legislative session.

I do not think the governor has the option of waiting until 2018 for the special election, this would be a cruel interpretation of “forthwith” and its synonym “immediately.” It would also be cruel to disrupt the 2018 primary and general election cycle by scheduling this special election at any time in 2018. The result of the special US senate election should be known before the 2018 cycle starts with its filing period in January 2018.

When on considers all of the above, I say the special election for the US senate should be scheduled for early November 2017, a minimum of five moths after the end of the 2017 session of the legislature and nearly two months before the start of the 2018 election cycle.

Here is the code (Section 36-9-8), reformatted for clarity:

A Whenever a vacancy occurs in the office of senator of and from the State of Alabama in the Senate of the United States more than four months before a general election, the Governor of Alabama shall forthwith order an election to be held by the qualified electors of the state to elect a senator of and from the State of Alabama to the United States Senate for the unexpired term. 
B If the vacancy occurs within four months of but more than 60 days before a general election, the vacancy shall be filled at that election. 
C If the vacancy occurs within 60 days before a general election, the Governor shall order a special election to be held on the first Tuesday after the lapse of 60 days from and after the day on which the vacancy is known to the Governor, and the senator elected at such special election shall hold office for the unexpired term.
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