[EL] Rumors on replacing Trump (redux)
Jonathan Swan
jswan at thehill.com
Sat Oct 8 08:58:28 PDT 2016
David, Rick, Sandy, Derek, Jim -- Would you mind if I quoted your
contributions to this thread for a story?
On Saturday, 8 October 2016, Derek Muller <derek.muller at gmail.com> wrote:
> I'm not so sure. I think it may be easier than one may anticipate. For
> instance, in 2000, Missouri Senate voters learned quite quickly that a vote
> for the deceased "Mel Carnahan" meant a vote for his widow. The letters
> "Mel Carnahan" were simply hieroglyphics on the ballot.
>
> In the (even more unlikely) event Trump is replaced prior to the third
> presidential debate and the Commission (subject to adequate polling to meet
> its objective standards, etc.) could invite this Republican alternative to
> the debate.
>
> But unless and until some combination of Don Jr., Ivanka, Chris Christie,
> and Rudy Giuliani persuade him to drop out, the chances of this scenario
> happening are effectively nil....
>
>
> Derek T. Muller
> Associate Professor of Law
> Pepperdine University School of Law
> SSRN: http://papers.ssrn.com/author=464341
> Twitter: http://twitter.com/derektmuller
>
> On Sat, Oct 8, 2016 at 8:33 AM, Pildes, Rick <pildesr at mercury.law.nyu.edu
> <javascript:_e(%7B%7D,'cvml','pildesr at mercury.law.nyu.edu');>> wrote:
>
>> The problem I see is that voters have to understand themselves to be
>> voting for some Republican alternative to Trump. That would be hard to
>> communicate effectively to enough potential voters without the name of that
>> alternative on the ballot.
>>
>>
>>
>> Richard H. Pildes
>>
>> Sudler Family Professor of Constitutional Law
>>
>> NYU School of Law
>>
>>
>>
>> *From:* Levinson, Sanford V [mailto:SLevinson at law.utexas.edu
>> <javascript:_e(%7B%7D,'cvml','SLevinson at law.utexas.edu');>]
>> *Sent:* Saturday, October 08, 2016 10:17 AM
>> *To:* Schultz, David A.
>> *Cc:* Pildes, Rick; JBoppjr at aol.com
>> <javascript:_e(%7B%7D,'cvml','JBoppjr at aol.com');>;
>> lawcourt-l at legal.umass.edu
>> <javascript:_e(%7B%7D,'cvml','lawcourt-l at legal.umass.edu');>;
>> law-election at uci.edu
>> <javascript:_e(%7B%7D,'cvml','law-election at uci.edu');>
>> *Subject:* Re: [Lawcourt-l] [EL] Rumors on replacing Trump (redux)
>>
>>
>>
>> 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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>
>> [mailto:law-election-bounces at department-lists.uci.edu
>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>]
>> *On Behalf Of *JBoppjr at aol.com
>> <javascript:_e(%7B%7D,'cvml','JBoppjr at aol.com');>
>> *Sent:* Saturday, October 08, 2016 7:25 AM
>> *To:* dschultz at hamline.edu
>> <javascript:_e(%7B%7D,'cvml','dschultz at hamline.edu');>;
>> law-election at uci.edu
>> <javascript:_e(%7B%7D,'cvml','law-election at uci.edu');>;
>> lawcourt-l at legal.umass.edu
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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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>>
>>
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>
>
--
Jonathan Swan
National Political Reporter
The Hill
202-349-8124 office
202-390-7353 cell
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