[EL] Rumors on replacing Trump (redux) / Elector nomination laws in PENN, NC, Uniform Faithful Presidential Electors Act

Sat Oct 8 09:45:45 PDT 2016

I agree with Prof. Derek Muller that, in a prominent race, voters can be quickly learn that “a vote for X is a vote for Y.”  The fact that a dead U.S. senatorial candidate was able to win a close and hotly contested race in Missouri supports that belief.  

A key problem is what the actual nominees for the position of presidential elector think and how a substitution was executed.  In Pennsylvania, for example, the presidential nominee (Trump) appoints the Republican nominees for the position of presidential elector.  In North Carolina, there is a law that declares the office of a duly elected presidential elector vacant if the elector doesn’t faithfully vote for the party’s nominee.  

Also, several states have adopted the Uniform Faithful Presidential Electors Act (UFPEA) ( <http://www.uniformlaws.org/ActSummary.aspx?title=Faithful%20Presidential%20Electors%20Act> http://www.uniformlaws.org/ActSummary.aspx?title=Faithful%20Presidential%20Electors%20Act ) described as follows by the Uniform Law Commission:

Almost all presidential electors in this country’s history have voted for their parties’ candidates, but in a few incidents electors have not voted as directed by the party.  Fortunately, that occasional “faithless” elector has not changed the outcome of a presidential election, but that is in good part because most Electoral College counts are not very close.  In several elections where close Electoral College votes seemed possible (but did not come about), campaigns have made plans to court faithlessness, and some electors have contemplated voting faithlessly.

The Uniform Faithful Presidential Electors Act addresses the problem of elector who decides to vote inconsistently with the way they were elected to vote by the people of the state. The UFPEA creates a procedure that helps assure that all states attempting to appoint a complete complement of electors will succeed and maintains the sanctity of the electoral process.

The emergence of political parties, the designation by those parties of presidential and vice-presidential candidates, and the parties’ nomination of presidential electors in each state who it was assumed would vote for the parties’ presidential and vice-presidential candidates has created dissonance between what the Constitution envisaged and the realities of the electoral process. In many states the ballot contains no mention of a role for electors at all.  Instead, the names of candidates for president and vice president appear on the ballots, accompanied by political party designation.  Votes for these candidates are then turned by state law into votes for electors. Even where ballots do make some mention of electors, the names of presidential and vice-presidential candidates appear and are typically given greater prominence.  To all appearances voters are thus casting ballots directly for presidential and vice-presidential candidates.  That is surely the working assumption of the overwhelming preponderance of the voters in the country, even if some of them —perhaps even many — appreciate that the eventual winner is determined by the electoral vote count.

In the contemporary electoral context, faithless votes hold the potential for great mischief, producing a president or vice-president (or both) other than those for whom voters were led to believe they were casting their votes. In order to address electoral mischief, approximately thirty states have taken some action to discourage or forbid faithless electoral votes. Some employ pledges of faithfulness, administered in some cases by political parties and in other cases as part of the ballot qualification process. Others forbid faithlessness, some with civil, or even criminal penalties. And some provide that faithless voting constitutes resignation from the office of elector.

The variation between state law opens up the possibility for disputes about whether a faithless vote is to be counted, and also whether a faithful vote might be substituted for it.  Different conclusions might be reached under different state laws, and there might be further dispute about the consequences of one resolution or another for the number of appointed electors — the base across the country for determining the required majority.  These various potential sources of discord and confusion argue strongly in favor of a uniform law adopted by every state that would forbid or nullify elector faithlessness and assure that each state submits an electoral vote count that reflects faithful voting.

The UFPEA proposes a state-administered pledge of faithfulness, with any attempt by an elector to submit a vote in violation of that pledge effectively constituting resignation from the office of elector. The Act provides a mechanism for filling a vacancy created for that reason or any other, with the substituted elector taking a similar pledge. After a full set of faithful elector votes is obtained, the uniform law further provides that the official notification of the identity of the state=s electors that is required under federal law be officially amended by the Governor, so that the state=s official list of electors contains the names of only faithful electors.

Additionally, the Act focuses narrowly on the possibility that an elector will break a commitment upon which popular voters were entitled to rely. Thus it explicitly provides that death of a presidential or vice-presidential candidate brings no obligation for an elector to vote for the dead candidate, or, in the case of the death of a presidential candidate, to vote for the vice-presidential running mate.

The possibility of later substitution is central to the Uniform Act’s approach to the problem of elector faithlessness, and for that reason Section 5 of the Act instructs the state executive to make explicit in the certificate of ascertainment that later substitution is possible and that where it has proved necessary a later amended certificate of ascertainment will be provided with a revised list of the state’s electors.  Section 8 then provides for submission of any amended certificate of ascertainment that proves necessary.

The Act addresses a problem that, in practice, may only rarely arise but has the potential to inflict great harm to our electoral process.  Uniform adoption of the Act will assure that the solution is consistent among the states, foreclosing attempts to “peel off” electors and helping states to secure their full complements of electoral votes.  It should be adopted by every state as soon as practicable.

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Fax: 650-941-9430

Email:  <mailto:john at johnkoza.com> john at johnkoza.com

URL:  <http://www.johnkoza.com/> www.johnkoza.com

URL:  <http://www.nationalpopularvote.com/> www.NationalPopularVote.com

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jonathan Swan
Sent: Saturday, October 8, 2016 8:58 AM
To: Derek Muller <derek.muller at gmail.com>
Cc: lawcourt-l at legal.umass.edu; law-election at uci.edu; Levinson, Sanford V <SLevinson at law.utexas.edu>
Subject: Re: [EL] Rumors on replacing Trump (redux)

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 <mailto: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> http://papers.ssrn.com/author=464341
Twitter:  <http://twitter.com/derektmuller> 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');> 
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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
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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 <tel:651.523.2858>  (voice)
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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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