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

Sat Oct 8 12:28:34 PDT 2016

FYI -- Here is the story I ended up writing (prompted by this interesting
thread):
http://thehill.com/blogs/ballot-box/presidential-races/300016-replacing-trump-would-mean-mayhem-for-gop-experts

On Sat, Oct 8, 2016 at 1:16 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu>
wrote:

> If the RNC were to persuade Trump to withdraw, the only plausible
> alternative around whom the party could coordinate would be Pence.  He
> maintains the connection to Trump and Trump voters, while being the only
> obvious focal point.
>
>
>
> 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 1:13 PM
> *To:* Pildes, Rick
> *Cc:* Schultz, David A.; 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)
>
>
>
> It's tricky. Most Republican voters might in fact be happy voting for
> Trump. The question is whether the RNC will in effect take control by
> identifying would-be "rogue electors" and, more importantly, coordinating
> in the preferred alternative.
>
>
>
> Sandy
>
> Sent from my iPhone
>
>
> On Oct 8, 2016, at 11:34 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
> <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)
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> 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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-- 

Jonathan Swan
National Political Reporter
The Hill

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