[EL] [Lawcourt-l] Rumors on replacing Trump (redux)

Sat Oct 8 07:39:39 PDT 2016

I too have mused on the option Levinson describes. The issue here is still
down ballot worries for the GOP.

On Oct 8, 2016 9:17 AM, "Levinson, Sanford V" <SLevinson at law.utexas.edu>
wrote:

> Forget all these technicalities. Why isn't the easiest thing for a number
> of Republican electors to announce that they will cast their votes for a
> untainted Republican. The best choice would clearly be John Kasich, who has
> conducted himself as a man of honor and is a plausible president. In any
> event, if Hillary doesn't get a majority of electoral votes, a few
> Republican votes for Kasich (or Romney) sends it to the House, which must
> choose among the three top electoral vote getters. This allows the RNC to
> renounce Trump without requiring new ballots or risking court fights, since
> I'm assuming that some states don't bind electors. For the record, of
> course, I would like to see Clinton win in a landslide, but I do wonder why
> the "House option" isn't being discussed.
>
> Sandy
>
> Sent from my iPhone
>
> On Oct 8, 2016, at 9:16 AM, Schultz, David A. <dschultz at hamline.edu>
> wrote:
>
> Assume for the sake of argument that Jim Bopp and I are correct that rule
> 9 does not allow for the RNC to remove Trump from the ticket.  What if
> nonetheless the RNC uses rule 9 to do so and Trump  goes to court to fight
> it.  Would the courts rule this an internal party matter and therefore
> decline jurisdiction or rule in favor of the party, or would they be
> willing to take the case and potentially argue that Trump was wrongly
> removed by the ticket?  I tend to think the courts would see it as an
> internal party matter and not want to intervene in a political dispute or
> fight about who is the legitimate party nominee (and therefore cause more
> voter or ballot confusion).  Or  do some think the courts would say that
> removing Trump at this late date would not be allowed by rule 9 and to do
> so would cause more voter and ballot confusion.
>
> Thoughts?
>
> On Sat, Oct 8, 2016 at 6:36 AM, Pildes, Rick <pildesr at mercury.law.nyu.edu>
> wrote:
>
>> My recollection is that the DNC rules do contain language that more
>> clearly permit the DNC to remove a candidate from the ballot than Rule 9 of
>> the RNC, just for comparison.
>>
>>
>>
>> Richard H. Pildes
>>
>> Sudler Family Professor of Constitutional Law
>>
>> NYU School of Law
>>
>>
>>
>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *
>> JBoppjr at aol.com
>> *Sent:* Saturday, October 08, 2016 7:25 AM
>> *To:* dschultz at hamline.edu; law-election at uci.edu;
>> lawcourt-l at legal.umass.edu
>> *Subject:* Re: [EL] Rumors on replacing Trump (redux)
>>
>>
>>
>> I agree with David that Rule 9 clearly does not authorize the RNC to
>> remove Trump.  It only authorizes the RNC to fill a vacancy if it occurs,
>> ie for instance, if he steps down. The applicable part is:
>>
>>
>>
>> *The Republican National Committee is hereby authorized and empowered to
>> fill any and all vacancies which may occur by reason of death, declination,
>> or otherwise of the Republican candidate for President . . .*
>>
>>
>>
>> This sentence only empowers the RNC to fill vacancies, not create them.
>> The phrase that some are pointing to is "*vacancies which may occur by
>> reason of death, declination, or otherwise"*. "Otherwise" here refers to
>> how vacancies may occur, ie "*by reason of death, declination, or
>> otherwise". *For instance, a vacancy could occur by disqualification of
>> the candidate by election officials or a court, because the candidate does
>> not meet the legal qualifications to be a candidate. There may be other
>> reasons that a vacancy could occur.
>>
>>
>>
>> The power to create a vacancy is a separate and independent power from
>> the power to fill vacancies and that power would have to be conferred
>> on the RNC by a specific rule, which does not exist.
>>
>>
>>
>> Jim Bopp
>>
>>
>>
>>
>>
>>
>>
>> In a message dated 10/7/2016 10:04:20 P.M. Eastern Daylight Time,
>> dschultz at hamline.edu writes:
>>
>> In light of Trump’s recent comments about women and questions about
>> whether he can be replaced, consider first the rule 9 THE REPUBLICAN
>> NATIONAL COMMITTEE which is posted below.
>>
>>
>>
>> The simple answer is no simple answer regarding what happens if Trump
>> were to be replaced on the ticket. The RNC executive committee has the
>> authority to replace Trump if he steps down or is otherwise incapacitated.
>> A coup does not seem possible and it does not appear that he can simply be
>> replaced by the will of the RNC.    But assume Trump is replaced. The
>> second issue is what to do with the ballots. In some states the law would
>> allow for a substitution while in others the law is more complicated and we
>> might a reprise of the Minnesota Wellstone death 11 days before the
>> election (of which I know way too much about). We also have, as with
>> Wellstone, the issue of already cast ballots and rights under state and
>> federal law that may force a right to recast ballots. There are a lot of
>> complicated practical as well as federal and state statutory and
>> constitutional issues at play here and there is no one simply answer that
>> applies to all 50 states.
>>
>>
>>
>>
>>
>> RULE NO. 9
>>
>> Filling Vacancies in Nominations
>>
>> (a) The Republican National Committee is hereby authorized and empowered
>> to fill any and allvacancies which may occur by reason of death,
>> declination, or otherwise of the Republican candidate for President of the
>> United States or the Republican candidate for Vice President of the United
>> States, as nominated by the national convention, or the Republican National
>> Committee may reconvene the national convention for the purpose of filling
>> any such vacancies.
>>
>>
>>
>>
>>
>> --
>>
>> David Schultz, Professor
>> Editor, Journal of Public Affairs Education (JPAE)
>> Hamline University
>> Department of Political Science
>>
>> 1536 Hewitt Ave
>>
>> MS B 1805
>> St. Paul, Minnesota 55104
>> 651.523.2858 (voice)
>> 651.523.3170 (fax)
>> http://davidschultz.efoliomn.com/
>> http://works.bepress.com/david_schultz/
>> http://schultzstake.blogspot.com/
>> Twitter:  @ProfDSchultz
>> My latest book:  Presidential Swing States:  Why Only Ten Matter
>>
>> https://rowman.com/ISBN/9780739195246/Presidential-Swing-
>> States-Why-Only-Ten-Matter
>> FacultyRow SuperProfessor, 2012, 2013, 2014
>>
>>
>>
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>>
>
>
> --
> David Schultz, Professor
> Editor, Journal of Public Affairs Education (JPAE)
> Hamline University
> Department of Political Science
> 1536 Hewitt Ave
> MS B 1805
> St. Paul, Minnesota 55104
> 651.523.2858 (voice)
> 651.523.3170 (fax)
> http://davidschultz.efoliomn.com/
> http://works.bepress.com/david_schultz/
> http://schultzstake.blogspot.com/
> Twitter:  @ProfDSchultz
> My latest book:  Presidential Swing States:  Why Only Ten Matter
> https://rowman.com/ISBN/9780739195246/Presidential-
> Swing-States-Why-Only-Ten-Matter
> FacultyRow SuperProfessor, 2012, 2013, 2014
>
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