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

Sat Oct 8 13:26:14 PDT 2016

I suppose the RNC could say right now that voters should vote for Trump and
that there would be discussions after election day on whether "Trump
electors" might vote for another candidate, with the House then likely to
pick that person if the Trump-Pence ticket "wins" a majority of the
electoral votes. There could be a very serious post-election conversation
in which there would be demands that Trump make various sincere apologies
and commitments, and a demand that Trump show by recent conduct that he is
a decent person. If the RNC isn't satisfied, it could ask electors to vote
for another Republican. (I use "another" loosely, because Trump does not
seem to be much of a Republican.) Perhaps we could end up with a President
Kasich, with Ohio electors voting for him.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Sat, Oct 8, 2016 at 12:27 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu>
wrote:

> Sandy,
>
> I think you are focusing on the wrong issue, in terms of trying to
> understand potential RNC action.  If the RNC wants to conduct a coup, it
> would not be for the purpose of winning the presidential election.  If
> things got to that point, I don’t think the RNC would think there was much
> chance of getting to 270 (absent, of course, some major new developments
> concerning Clinton).  The point of the RNC intervention would be to try to
> save candidates down the ballot.  To do that, I think they would need a
> different name at the top of the ticket, which would require formal
> replacement, with all the legal issues that would involve.
>
>
>
> 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 1:41 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)
>
>
>
> I think one has to presume no withdrawal but an RMC de facto coup short of
> a formal replacement with all of the attendant problems.
>
>
>
> Sandy
>
>
> Sent from my iPhone
>
>
> On Oct 8, 2016, at 1:17 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
> <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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