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

Sat Oct 8 10:15:21 PDT 2016

There are the considerations of law and precedence. A candidates incapacitation prior to an election is one thing—removal of a candidate that is alive and is likely not going to take it quietly is another.  There would likely be court challenges not just from him, his supporters, and those who cast absentee or early votes for him may want those votes counted as cast or those who may have changed their minds and not want their absent ballot counted as cast.  What flexibility does someone have if they voted absentee to get a do-over ballot if they want to change their choice(s)?  Are voters out of luck if their ballot was cast during early voting? Will the turmoil in October cause voters to delay voting early and wait until election day as an attempt to not cast a ballot out of concern that significant things may happen that would influence their decision.  

If the RNC did remove him that would likely cause serious down ballot consequences and an open war between the no matter what and never factions.   

Another consideration:

Given the reports that Russia has been attempting to interfere in the election—with a more likely goal of causing chaos—removal of a candidate would cause chaos.  Absent Russian interference the internal struggle following a removal would be messy but could be contained to this election season. Unfortunately, if this turns into a mess the Russians would take that as success and may see value regarding future efforts to tamper or cause chaos in U.S. elections.  This may mean that keeping the election system from the nominating process to the general election as it is would be under pressure. Beginning with the state legislative sessions in 2017, it would be interesting to note the types of election laws proposed in the states that are not related to voter ID. 

We are already seeing changes in which federal agencies are looking at elections for example,the FEC, DOJ and EAC, were the only Federal agencies involved in federal elections the list this year includes DHS and ODNI. The Secretary of DHS declared that he considered the Election System critical infrastructure, which they have jurisdiction over. DHS and ODNI should have included election lawyers from all sides in their counsel regarding protecting the election system from Russian interference.  DHS has done some work on this by meeting with Secretaries of State regarding cybersecurity and election administration.  DHS has several Secretaries of State assisting them in their cybersecurity efforts. I did not get the impression they understood that the administration of elections happens on the county/parish/township level. 

Lillie Coney
coney at lillieconey.net

> On Oct 8, 2016, at 12:26 PM, Greenberg, Kevin <Kevin.Greenberg at flastergreenberg.com> wrote:
> 
> Folks,
> 
> Let's drop the attacks and keep this to the law or at least the law-related.
> 
> Just a personal opinion (and one not from a Trump fan).  If we want to share our opinions of candidates, that's what Facebook is for.
> 
> Kevin Greenberg
> 215-279-9912
> kevin.greenberg at flastergreenberg.com<mailto:kevin.greenberg at flastergreenberg.com>
> 
> On Oct 8, 2016, at 12:24 PM, Reuben, Richard C. <ReubenR at missouri.edu<mailto:ReubenR at missouri.edu>> wrote:
> 
> Trump does not have the humility or statesmanship to drop out. In fact, I don't even see him accepting an election day loss without a lawsuit, much less graciously.
> 
> In this sense, he is nowhere near the person that Richard Nixon was, and that speaks volumes in my view.
> 
> 
> 
> Sent from my T-Mobile 4G LTE Device
> 
> 
> -------- Original message --------
> From: "Pildes, Rick" <pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu>>
> Date: 10/8/16 11:13 AM (GMT-06:00)
> To: Derek Muller <derek.muller at gmail.com<mailto:derek.muller at gmail.com>>
> Cc: lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>, law-election at uci.edu<mailto:law-election at uci.edu>, "Levinson, Sanford V" <SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu>>
> Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
> 
> Derek,
> I think you are imagining a situation in which Trump voluntarily withdraws.  But I think Sandy is looking for a path in which the party circumvents Trump.  If Trump does not voluntarily withdraw and the party tries to get the message out that a vote for him is actually a vote for someone else (eg, Pence) I think the voter confusion would be off the charts.
> 
> Richard H. Pildes
> Sudler Family Professor of Constitutional Law
> NYU School of Law
> 
> From: Derek Muller [mailto:derek.muller at gmail.com]
> Sent: Saturday, October 08, 2016 11:45 AM
> To: Pildes, Rick
> Cc: Levinson, Sanford V; Schultz, David A.; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:law-election at uci.edu>
> Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
> 
> 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<mailto: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<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<mailto:JBoppjr at aol.com>; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto: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<mailto: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<mailto: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> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr at aol.com>
> Sent: Saturday, October 08, 2016 7:25 AM
> To: dschultz at hamline.edu<mailto:dschultz at hamline.edu>; law-election at uci.edu<mailto:law-election at uci.edu>; lawcourt-l at legal.umass.edu<mailto: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<mailto: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.
> 
> 
> --
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> Hamline University
> Department of Political Science
> 1536 Hewitt Ave
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