Thursday, August 10, 2017
The 2017 Alabama special election for the U.S. Senate kicks off with party primaries this coming Tuesday (Aug. 15). Should one or both parties have no candidate win a majority that day, a primary runoff will take place on Sept. 26. Both sides have crowded fields, but given the dark red hue of the state, most expect the eventual Republican nominee to hold the seat for the GOP. The appointed incumbent, Sen. Luther Strange (R), appears somewhat vulnerable, at least in the Republican primary.
Of the nine total Republican candidates, Strange and two others — Rep. Mo Brooks (R, AL-5) and former Chief Justice of the Alabama Supreme Court Roy Moore (R) — are viewed as the likeliest to win the GOP nomination. However, a Republican primary runoff looks probable. Notably, the last time a Senate primary runoff took place without an incumbent (elected or appointed) who sought reelection was in 1944, when Sen. Hattie Caraway (D-AR) finished a distant fourth in Arkansas’s Democratic primary; then-Rep. J. William Fulbright went on to win the Democratic nomination in the runoff and the seat in November. Plenty of Senate incumbents have lost renomination since then, but if there has been a runoff, the incumbent has at least made it to the second round.
The trio of Alabama Republicans most likely to advance to a runoff are no strangers to controversy. Strange was appointed in February 2017 by former Gov. Robert Bentley (R), who resigned in April after pleading guilty to violations of campaign finance law. Prior to his appointment to the Senate, Strange was Alabama’s attorney general, and his office was investigating Bentley’s actions. Critics claim that Strange slowed impeachment efforts by the state legislature once it became clear that then-Sen. Jeff Sessions (R) would be a likely choice for incoming President Donald Trump’s Cabinet. Sessions’ move to the attorney general post created a Senate vacancy, a post Strange was interested in and whose future was controlled by Bentley.
But Brooks and Moore have their own issues. For instance, Brooks created a dust-up in 2014 when he claimed that the Democratic Party was “waging a war on whites,” and Brooks’s membership in the House Freedom Caucus makes him anathema to both House and Senate Republican leadership. For his part, Moore has twice been elected chief justice of the Alabama Supreme Court and has twice had an early exit from the bench. In 2003, he was removed for refusing to obey a federal court order to take down a monument to the Ten Commandments in a state judicial building. Then in 2016 Moore was suspended after continuing to direct state judges to enforce Alabama’s gay marriage ban even though the U.S. Supreme Court had overturned it. Moore later resigned the post.
As the campaign enters its final days, limited polling shows no Republican is close to the magic 50% mark that would enable the first-place finisher to avoid a runoff, nor do the surveys create much certainty about which pair might advance to the second round. In the money race, Strange has outspent Brooks more than two-to-one and Moore nearly eight-to-one. On top of that advantage, Senate Majority Leader Mitch McConnell’s (R) Super PAC, the Senate Leadership Fund, has spent millions to help Strange. Much of that support has come in the form of negative ads seeking to define Brooks as anti-Trump, a potentially damaging attack in a state that is one of the friendliest to the president. But last week the SLF began going after Moore as well. The massive investment by McConnell allies might seem like overkill in a race that the GOP nominee seems extremely likely to win, but with a small Senate majority, McConnell surely views Strange as a more reliable vote than the more anti-establishment Brooks and Moore. On Tuesday evening, Strange may have received a last-minute boost when Trump tweeted that the appointed incumbent has the president’s “complete and total endorsement!” The likeliest outcome seems to be a runoff between Strange and Moore, although primaries are hard to forecast and Brooks could finish in the top two. Meanwhile, if Strange somehow wins more than 50% and avoids a runoff, Trump’s late endorsement could be a key reason why.
Brooks has countered McConnell by running ads touting his support for the president, his backing from conservative personalities, and by connecting the disliked McConnell to Strange. He also stirred controversy by using the recent shooting of Rep. Steve Scalise (R, LA-1) in an ad to reaffirm his support for the 2nd Amendment. As for Moore, he has also made a strong anti-McConnell pitch to voters. While Moore has a much smaller war chest than Brooks or Strange, he almost always has been outraised in past contests, some of which he won despite fewer resources.
As suggested earlier, the eventual GOP nominee will be a heavy favorite to win the special election on Dec. 12. The last time an Alabama Democrat won even 40% in a Senate contest was in 1996, when Sessions won an open-seat contest 52%-45%. Democrats appear to have a decent recruit in former U.S. Attorney Doug Jones, but polls show a mystery Democrat attractively named Robert Kennedy Jr. well ahead of Jones in the Democratic primary race. The chance of a Democrat winning the special election likely falls between slim and none, but the struggling Alabama Democratic Party would surely like to put up a fight, something that may be difficult to do if a complete unknown is the party’s nominee.
Like some other southern states, Alabama has in recent times been mostly a one-party Republican state in Senate elections, but historically was a one-party Democratic state. Thus, the Yellowhammer State has a long history of fascinating primaries that essentially determined the winner of the general election. And at least a few of those primaries took place as a part of special elections.
Dating back to the establishment of the 17th Amendment, this special Senate election will be the sixth in Alabama’s history, tying it with Idaho and New Jersey for the second-most (Kentucky leads all states with seven). But if we discount concurrent special elections for the same Senate seat — that is, a seat that had two elections on the same date, a special election to finish off the few remaining months of a term (usually due to death or resignation) and a regular election to elect someone for the next full term for that seat — this latest special will tie Alabama with Idaho for the most stand-alone specials: six.
What follows is a look at Alabama’s previous five special election contests for the Senate. The details illustrate the political battles that can occur in a one-party state and the evolution of the primary process. This history also allows us to showcase how the state’s first special election played a major role in establishing precedents for how Senate vacancies are handled.
Sen. Joseph Johnston (D) died on Aug. 8, 1913. His death created a Senate vacancy that was, as the Los Angeles Times wrote, “the first to test the authority of a Governor to fill a vacancy since the direct election amendment to the Constitution was adopted.” Certified on May 31, 1913, following ratification by three-fourths of the states, the 17th Amendment to the Constitution called for the popular election of U.S. senators. But now Johnston’s death would challenge institutions and politicians to apply this new legal reality to unanticipated Senate vacancies.
In response to Johnston’s death, Gov. Emmet O’Neal (D-AL) appointed Rep. Henry Clayton Jr. (D, AL-3) to the open seat on Aug. 11, 1913, but the Senate challenged O’Neal’s move. The Democratic majority in the upper chamber argued that O’Neal had not acted in conformity with the 17th Amendment, which says in its second paragraph “that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
Alabama’s state legislature wasn’t due to meet again until 1915 (it only met once every four years at the time, though as of 1940 only four state legislatures met annually), meaning it had not met since the ratification of the 17th Amendment. Thus, Senate Democrats held that O’Neal needed to call the state legislature into a special session to assign appointment power to the governor before he could use it to replace Johnston. O’Neal argued that a senator was a state officer, so Alabama law gave him the right to appoint a replacement because the full term for that seat did not expire until 1915. Although Senate Democrats could have used another vote, they also worried that debate over the appointment process might delay votes on tariff legislation, which was resting on a knife’s edge. Johnston’s death had cut the Democratic majority to 50-45, but the probable defection of two Louisiana Democrats on the tariff bill made it a threadbare 48-47 edge for the pro-tariff caucus. (The Underwood Act, which passed in the fall of 1913, re-imposed an income tax and lowered tariffs. More on the bill’s namesake below.)
On Oct. 11, 1913, Clayton resigned his appointment-in-waiting following President Woodrow Wilson’s urging. The president told Clayton he was needed in the House to lead efforts to pass antitrust legislation (Clayton chaired the House Judiciary Committee and eventually authored the famous Clayton Antitrust Act). But Wilson may have preferred another: According to the Washington Post , Clayton’s abandonment of the appointment was seen as “a big boost for” Rep. Oscar Underwood (D, AL-9), the House majority leader and possible candidate for the remainder of the term for the Senate vacancy. Underwood was already a candidate for the full term, which would be up for election in November 1914, and Clayton had said that he too intended to run for the full term prior to abandoning his appointment. As the Los Angeles Times surmised, Wilson’s encouragement for Clayton to exit the Senate stage could be seen as payoff for Underwood abandoning his presidential aspirations at the 1912 Democratic National Convention, which helped Wilson clinch the nomination.
But this Senate saga had not yet reached its conclusion. Still seeking to fill the seat, O’Neal tried to appoint Frank Glass, editor of the Birmingham News, on Nov. 17, 1913. But the Senate’s opposition held firm. On Feb. 4, 1914, the Senate voted 32-31 against a substitute resolution to give Glass the seat, and then voted 34-30 to adopt a resolution to deny the appointment (apparently many senators abstained or were absent). Interestingly enough, Sen. Blair Lee (D-MD), who was seated after winning the first popular Senate election after the ratification of the 17th Amendment — a November 1913 special — voted in favor of Glass’s appointment. Many arguing in favor of Glass (and Clayton previously) said it was an issue of representation because the seat had long remained vacant. Naturally, the classic issue of states’ rights also arose regarding the question of whether a senator was a federal or state officer; O’Neal’s argument for his right to appoint rested on it being the latter.
In early March 1914, O’Neal called for a special election to be held on May 11. With the Democratic primary being tantamount to election in Alabama at that time, Frank White won his party’s nomination with about 60% of the vote in the April primary and then won the special election unopposed. In the same April primary, Underwood won the nomination for the full term and went on to romp to victory in November in the heavily Democratic state.
The man occupying the other Alabama Senate seat throughout the machinations that eventually led to the state’s first Senate special election was Sen. John Bankhead (D), the head of one of Alabama’s most notable families. Two of his sons served in Congress — John II also as a senator, William as a member of the U.S. House and speaker of that chamber from 1936 to 1940 — while his granddaughter Tallulah made her name on the stage and silver screen as a well-known actress. Appointed and subsequently elected to the Senate in 1907 by the state legislature, the elder Bankhead was reelected in 1912 and then again by direct election in 1918. While his second full term was supposed to last until March 1925, Bankhead died on March 1, 1920, precipitating the state’s second Senate special election in November 1920.
The May 11, 1920 Democratic primary featured two of the players in the 1913-1914 ordeal: ex-Gov. Emmet O’Neal, who had struggled in the face of the Senate’s opposition to appoint a senator, and ex-Sen. Frank White, who had eventually won the 1914 special election to finish off the term for that seat. White had challenged Bankhead in the 1918 Democratic primary for Senate, but lost to the incumbent 56%-44%.
Alabama Democrats employed a preferential primary voting system in 1920 instead of a separate runoff election to nominate someone if no candidate won a majority. That is, a voter was supposed to select a first and second choice on the primary ballot. Should no candidate win a majority of the first-choice votes, the combined first- and second-choice votes of each candidate would be the vote total that decided a winner. A trio of southern states — Alabama, Florida, and Louisiana — tried out preferential vote systems in the early 20th century, but they eventually turned to runoffs because voters did not cast many second-choice votes. Exemplifying this problem, the 1920 special Democratic primary for Senate in Alabama had 130,814 first-choice votes and only 34,768 second-choice votes.
Although White and O’Neal had previously won statewide Democratic primaries and general elections, they finished second and third, respectively, behind Rep. J. Thomas Heflin (D, AL-5) in combined first- and second-choice votes. Heflin, a virulent racist and anti-Catholic, easily won the special election in November 1920, and he also won reelection to a full term in 1924.
With an eye on the next special election, it is worth examining Heflin’s story further. Heflin’s support for the Ku Klux Klan and the Anti-Saloon League (a prohibition or “dry” group) led to discord between him and the “Bourbon” faction of the Alabama Democratic Party, who viewed Heflin as a potential threat to their control of the party. In 1928, Heflin refused to support Al Smith — both a Catholic and a “wet” — as the Democratic Party’s presidential nominee, instead campaigning against his party’s choice. Heflin was not alone in eschewing Smith among Alabama Democrats. In the aftermath of Smith’s close-run win in the state (and huge loss nationally), the Democratic state committee narrowly voted to exclude any statewide candidate who voted for Herbert Hoover or had campaigned against Smith. This new rule forced Heflin to seek reelection as an independent in 1930, and he lost to John Bankhead II (D) in the 1930 general.
Heflin reappeared to run for the Senate in 1938 when another seat opened up. In August 1937, Sen. Hugo Black (D) was appointed to the U.S. Supreme Court by President Franklin Roosevelt, so Gov. Bibb Graves (D) appointed his wife, Dixie Bibb Graves, to the seat to avoid favoring any potential replacement candidates in the special election, making her the first woman to represent Alabama in the upper chamber. The special election for the seat was set for April 26, 1938.
In his bid to return to the Senate, Heflin faced Rep. J. Lister Hill (D, AL-2) in the January 1938 Democratic primary. While Hill, a New Dealer, wanted to cast the race as New Deal versus anti-New Deal, Heflin had served in FDR’s administration and indicated that he wasn’t opposed to the administration on all issues. Despite some conservative opposition to Hill, he received the backing of Gov. Graves and had a better-financed campaign.
In the end, the primary contest wasn’t close — Hill defeated Heflin 62%-34% for the party’s nomination. Sen. Dixie Bibb Graves resigned a few days later and Hill was appointed to the seat in her stead. Hill then won the special election in April unopposed to confirm his position. The seat was also scheduled to be up for regular election in November 1938, a contest that Hill won easily. Hill held the seat for five full terms, but was nearly beaten in 1962 by Jim Martin (R), a key figure in the establishment of the modern Alabama GOP. Hill didn’t seek reelection in 1968.
The next Alabama special election for a Senate seat occurred after Sen. John Bankhead II (D) met the same fate as his father, dying in office on June 12, 1946. George Swift (D) was appointed to fill the seat until the special election in November 1946, but he did not seek election for the remainder of the term. Three notable Democrats sought their party’s nomination in the contest: Reps. Frank Boykin (D, AL-1) and John Sparkman (D, AL-8), and state Sen. Jim Simpson (D), who had lost to Hill in a hard-fought primary for the state’s other Senate seat in 1944.
Sparkman was a DC favorite as the House Democratic Whip and received support from Hill, New Dealers, and organized labor (both the AFL and the CIO, which were then separate). His two opponents were more conservative: Boykin held strong anti-labor positions, opposed the anti-discrimination Fair Employment Practices Committee, and was an isolationist, while Simpson had challenged Hill two years earlier as an opponent of FDR’s domestic policies and Washington’s “bureaucratic meddling” on racial issues.
With Boykin and Simpson splitting some of the conservative vote, Sparkman finished first in the July 30 primary, and crucially he avoided a runoff by winning 50.1%. Sparkman went on to win unopposed in November. Sparkman would be reelected in 1948, 1954, 1960, 1966, and 1972, and was the 1952 vice presidential candidate for the Democratic Party, running with Adlai Stevenson. Succeeded by Sen. Howell Heflin (D) — J. Thomas Heflin’s nephew — Sparkman is the longest-serving senator in Alabama history at a little over 32 years in office.
The 2017 special election has some elements that are reminiscent of Alabama’s most recent special election for the Senate, which took place in 1978. Hill opted against a reelection bid in 1968, and Lt. Gov. Jim Allen (D) won the Democratic nomination and the November election that year. Reelected unopposed in 1974, Allen died on June 1, 1978, creating a vacancy. Gov. George Wallace (D) appointed Allen’s wife, Maryon Pittman Allen, to the seat on June 8, though the governor was also contemplating a run for it himself. Meanwhile, Alabama’s other Senate seat was also open due to Sparkman’s impending retirement, and it had attracted a fair number of candidates, some of whom now considered moving over to the special election contest instead. Among them was state Sen. Donald Stewart (D), who switched races on June 21.
Maryon Allen had made it clear when she was appointed that she would run for the remainder of the term in the November special election. Initially, she was viewed as a solid favorite. But the contest turned into a competitive one, in part because of controversy over a July 30 Washington Post profile where she was critical of Wallace and his family. Her comments offended many in the state, both for their attacks on the Wallaces and their undignified tone, and some wondered if she should have given an interview to the liberal paper in the first place. Her opponents attacked her for her comments and for avoiding the public eye — she refused to debate Stewart — during the campaign.
Running as “Mrs. Jim Allen,” she finished first with 45% in the Sept. 5 Democratic primary, but fell short of the majority that would have allowed her to avoid a runoff. In the primary runoff, Stewart defeated Allen 57%-43%, with the appointed incumbent actually winning a slightly lower share in the runoff than in the initial primary (it should be noted that there were around 125,000 more total votes in the runoff than in the primary). Stewart then won the general election in 1978, defeating ex-Rep. Jim Martin (R) — the same one Hill narrowly defeated in 1962 — by 12 points.
But Stewart would have his own intraparty problems two years later, when he was unable to win a majority in the Democratic primary and lost to Jim Folsom Jr. (son of former Gov. “Big Jim” Folsom, and later governor himself) by just one point in the runoff. Folsom then lost the general election in the 1980 Republican wave to Jeremiah Denton, who became the first Republican to represent Alabama in the U.S. Senate since Reconstruction. But Denton lost an extremely tight race for reelection in 1986 to Rep. Richard Shelby (D, AL-7), who still holds this seat but switched parties in 1994 to become a Republican.
Reelected in 2016, Shelby is due to pass Sparkman as the longest-serving Alabama senator in March 2019. He and Sessions served together as Republicans in the Senate for two decades after Sessions’s 1996 election, and there’s every reason to think that the eventual GOP nominee in a likely primary runoff will maintain the GOP’s hammerlock on the Yellowhammer State’s two Senate seats — something that would have been difficult to imagine in one-party Democratic Alabama for most of the post-Civil War era.
1. “Clayton’s Seat Is Contested,” Los Angeles Times , Aug. 19, 1913, p. 4.
2. “Clayton for Senator,” Washington Post , Aug. 12, 1913, p. 1; “Gives Clayton Seat,” Washington Post , Aug. 13, 1913, p. 1; “No Seat for Clayton,” Washington Post , Aug. 14, 1913, p. 3.
3. “Won’t Seat Clayton Named as Senator,” New York Times , Aug. 13, 1913, p. 8.
4. “Clayton Case Discussed,” Washington Post , Aug. 28, 1913, p. 4.
5. “Democratic Tariff Lead Cut to 1 Vote,” New York Times , Aug. 9, 1913, p. 3; “Clayton as Senator May Not Be Seated,” Los Angeles Times , Aug. 13, 1913, p. 2; “Senate Bars Clayton,” Washington Post , Aug. 21, 1913, p. 3.
6. “Stays in the House,” Washington Post , Oct. 12, 1913, p. 1.
7. “Calls Off Clayton,” Washington Post , Oct. 11, 1913, p. 1.
8. “Underwood Seeks Senate,” New York Times , Oct. 5, 1913, p. 14.
9. “Clayton Sure to Run,” Washington Post , Sept. 28, 1913, p. 3.
10. “Hobson’s Choice,” Los Angeles Times , Nov. 14, 1913, p. 16.
11. “Mr. Glass a Senator,” Washington Post , Nov. 18, 1913, p. 1.
12. “F.P. Glass Denied Place in Senate,” Chicago Daily Tribune , p. 5, Feb. 5, 1914; “Glass Gets No Toga,” Washington Post , Feb. 5, 1914, p. 1.
13. “Filling Two Senate Seats,” Washington Post , Jan. 10, 1914, p. 6.
14. “To Call Special Election to Elect New Senator,” Decaturs Daily , March 4, 1914, p. 1.
16. Thornton III, pp. 28-38.
17. Carroll Kilpatrick, “Alabama Race,” Washington Post , Nov. 8, 1937, p. 7; “‘Cotton’ Tom to Speak at Cullman Friday Night,” Cullman Banner , Dec. 10, 1937, p. 1.
18. “Alabama’s Senate Race,” Cullman Banner , Dec. 17, 1937, p. 1.
19. “Voting Light as Alabamians Pick Senator,” Anniston Star , July 30, 1946, p. 1.
20. Samuel L. Webb, “John J. Sparkman,” Encyclopedia of Alabama , last updated April 21, 2015, http://www.encyclopediaofalabama.org/article/h-1441; Harold B. Hinton, “CIO Again Active in Alabama Voting,” New York Times , July 14, 1946, p. 25.
21. “Boykin and Simpson Invade North Alabama,” Anniston Star , July 1, 1946, pp. 1, 7.
22. “Senator Hill Defeats Simpson; Hobbs Is Re-elected in Fourth; Rains Apparently Ousts Starnes,” Anniston Star , May 3, 1944, p. 1.
23. Peggy Roberson, “Mrs. Allen: ‘Thank you…see you at the polls’,” Montgomery Advertiser , June 9, 1978, p.1; “Wallace Won’t Seek Either Senate Seat,” Montgomery Advertiser , June 22, 1978, p. 1.
24. Paul Billing, “Maryon Allen Runs on Legend,” Anniston Star , Aug. 24, 1978, p. 5; Peggy Roberson, “Voters Make Pollsters Look Bad in Senate Races,” Montgomery Advertiser , Sept. 6, 1978, p. 1.
Geoffrey Skelley is the Associate Editor at the Center for Politics at the University of Virginia.
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