[EL] Rumors on replacing Trump (redux)
Marty Lederman
lederman.marty at gmail.com
Sat Oct 8 09:13:59 PDT 2016
And what if Pence drops out instead (presumably to be replaced (?) by one
of the only two people willing to accept the "honor" -- Christie and
Giuliani)?
On Sat, Oct 8, 2016 at 12:08 PM, Nate Persily <npersily at law.stanford.edu>
wrote:
> Folks,
>
> I have placed on the election law blog a memo describing the process for
> replacement of a presidential candidate in the event of a vacancy. It has
> links to the various state laws. It is available here:
> https://t.co/cuPj8UXb0O
>
> My short video from July about what happens when Trump withdraws in
> October is available here:
> https://www.youtube.com/watch?v=ddBcYik4xN8&feature=youtu.be
>
> Nate
>
>
> ----------------
>
> Nate Persily
>
> James B. McClatchy Professor of Law
> Stanford Law School
> 559 Nathan Abbott Way
> Stanford, CA 94305-8610
> (917) 570-3223
> npersily at stanford.edu
>
> www.persily.com
>
> On Sat, Oct 8, 2016 at 8:58 AM, Jonathan Swan <jswan at thehill.com> wrote:
>
>> 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> 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]
>>>> *Sent:* Saturday, October 08, 2016 10:17 AM
>>>> *To:* Schultz, David A.
>>>> *Cc:* Pildes, Rick; JBoppjr at aol.com; lawcourt-l at legal.umass.edu;
>>>> 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>
>>>> 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-Sta
>>>> tes-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-Sta
>>>> tes-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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