Could the Senate really expel Roy Moore after the election?
Door to Senate Select Committee on Ethics

Could the Senate really expel Roy Moore after the election?

Here's what the Constitution says.

Posted November 13, 2017 09:01 PM by Nate Madden and Rob Eno Door to Senate Select Committee on Ethics
The Senate Select Committee on Ethics is seen in the Hart Senate Office Building on Wednesday, Sept. 13, 2017 | Bill Clark | Getty Images
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On Monday, a second woman, Beverly Young Nelson, accused Judge Roy Moore of sexual assault when Nelson was 14 and Moore an adult in his 30s. This is similar to the timeframe established by the previous accuser.

Shortly thereafter, the chair of the National Republican Senatorial Committee, Cory Gardner, said that he would support the expulsion of Moore by the senate, should the people of Alabama elect Moore for the Senate seat vacated by Attorney General Jeff Sessions. 

While constitutional, as Politico’s Steven Shepard noted, an expulsion attempt of a directly elected senator has never succeeded.

There is little the Senate Republicans or the Alabama Republican Party could do to affect the special election and still win. For his part, Moore, the duly certified Republican Party nominee, shows no signs of backing out, even amid the new accusations and chorus of calls for him to do so. 

Despite some initial confusion last week when the news broke of a woman accusing Moore of sexual misconduct, there is no way for Moore’s name to be taken off the Dec. 12 general election ballot, Alabama Secretary of State John Merrill told the Washington Examiner. The ballot was certified on Oct. 18 and “a lot of people have already voted,” explained Merrill.

However, despite Alabama’s “sore loser” law, write-in votes for Moore’s primary challengers would be counted, Merrill told the Examiner. But would a write-in candidacy do anything but elect a Democrat?

In the event the state and/or national party backs a Republican write-in candidate, it’s very likely that such a move would split the vote between likely Republican voters who think the accusations are disqualifying and those who outright don’t believe the accusations — providing the Democrats a significant advantage.

If Moore wins the Dec. 12 election, after he is sworn in, the case could be sent to the Senate Select Committee on Ethics for its own investigation into the matter. The committee would then vote whether or not to recommend Moore for expulsion. If the committee votes to recommend expulsion, the matter would go to the full Senate.

According to Article II of the Constitution, the threshold to remove a member of either chamber of Congress is a two-thirds majority. If successful, the seat would again be vacated in Alabama and start the special-election process all over again. State Gov. Kay Ivey would also appoint a person to fill the vacant seat on an interim basis. 

According to the U.S. Senate website, the Senate has considered expulsion 30 times and voted to expel 15 members. Fourteen members were expelled for supporting the Confederacy and one for “anti-Spanish conspiracy.” Of the remaining 15, five resigned before action could be taken, one had his term expire, and nine had no action taken or were not expelled. 

Since the adoption of the 17th Amendment in 1913, there has not been a vote in favor of expulsion in the United States Senate.

The Senate Select Committee on Ethics has previously recommended expulsion for members without conviction for crimes, such as in the sexual misconduct and abuse-of-power case against Oregon Sen. Bob Packwood.

In other cases, it has not acted — most notably when Sen. Edward Kennedy pleaded guilty to leaving the scene of an accident in which Mary Jo Kopechne died after Kennedy drove off a bridge in Chappaquiddick. Nor has the Senate taken action on the corruption charges currently facing Sen. Robert Menendez, D-N.J.

It would be constitutional for the Senate to vote to expel Roy Moore should he win the election. That course of action would be extraordinary, especially since the people who vote in the election would have had the time to weigh the information from Moore’s accusers before casting their votes. 


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 Nate Madden is a staff writer for Conservative Review, focusing on religious freedom, immigration, and the judiciary. Follow him @NateMaddenCR and on Facebook.

Robert Eno is the director of research for Conservative Review. He is a conservative from deep blue Massachusetts but now lives in Greenville, SC. If you see something you’d like him to cover, tweet him @robeno.