[EL] [Lawcourt-l] Rumors on replacing Trump (redux)
Sean Parnell
sean at impactpolicymanagement.com
Sat Oct 8 15:44:53 PDT 2016
I think they could re-designate a different nominee post-election day, as you outline, but it's my view that electors aren't bound, so they would still be free to vote however they want - Trump, Pence, Romney, Sweet Meteor 'O Death, etc.
Sean
Sent from my iPhone
> On Oct 8, 2016, at 5:30 PM, Mark Scarberry <mark.scarberry at pepperdine.edu> wrote:
>
> How about this:
>
> "The RNC shall have power to replace the Republican nominee for President at any time up to the date on which electors gather to cast votes for President. Electors pledged to vote for the Republican candidate shall vote on December 19, 2016, for the person who is the candidate of the Republican party as of that date."
>
> October 8 plus 10 days plus 30 days is November 17, right? That's well before December 19, giving some time for the rules amendment process and providing an opportunity for the RNC to replace Trump before the electors meet. As quoted by Rick, the deadline for rules changes is Sept. 30, **2018**. Not practical, I suppose, but perhaps possible.
>
> Maybe the deadline for rule changes is September 30, **2016,** not, 2018, which perhaps is a typo. If so, could that rule be amended effective prior to December 19 to validate rules changes adopted after 9/30/16?
>
> This is an entrenchment question, right?
>
> Mark
>
> Prof. Mark S. Scarberry
> Pepperdine Univ. School of Law
>
>> On Sat, Oct 8, 2016 at 1:42 PM, Sean Parnell <sean at impactpolicymanagement.com> wrote:
>> Thanks for the clarification, didn't have the rules in front of me and forgot about the timelines. So that's out, an Electoral College switch is the last option at this point.
>>
>> Sean
>>
>> Sent from my iPhone
>>
>>> On Oct 8, 2016, at 4:32 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu> wrote:
>>>
>>> To the extent the RNC rules matter to any of this, Rule 12 does permit an amendment of Rule 9. But look at how cumbersome that process is under Rule 12. The amendment would take effect after the election…
>>>
>>> The Republican National Committee may, by three-fourths (3/4) vote of its entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall be considered by the Republican National Committee only if it was passed by a majority vote of the Standing Committee on Rules after having been submitted in writing at least ten (10) days in advance of its consideration by the Republican National Committee and shall take effect thirty (30) days after adoption. No such amendment shall be adopted after September 30, 2018.
>>>
>>>
>>>
>>>
>>>
>>> Richard H. Pildes
>>>
>>> Sudler Family Professor of Constitutional Law
>>>
>>> NYU School of Law
>>>
>>>
>>>
>>> From: Sean Parnell [mailto:sean at impactpolicymanagement.com]
>>> Sent: Saturday, October 08, 2016 4:29 PM
>>> To: Jonathan Swan
>>> Cc: Pildes, Rick; lawcourt-l at legal.umass.edu; law-election at uci.edu; Levinson, Sanford V
>>> Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
>>>
>>>
>>>
>>> There's one pretty significant qualification to the statement that GOP Rule 9 does not in its current form permit the RNC to dump Trump: Rule 12 permits a super-majority of the RNC to change any rule except what are now the temporary rules of the 2020 convention. So if the RNC wanted to, they could amend Rule 9 to give themselves the authority to declare the nomination vacant.
>>>
>>>
>>>
>>> I do not expect this to happen, but it is incorrect to assume there is no option left to remove him.
>>>
>>>
>>>
>>> Sean Parnell
>>>
>>> Sent from my iPhone
>>>
>>>
>>> On Oct 8, 2016, at 3:28 PM, Jonathan Swan <jswan at thehill.com> wrote:
>>>
>>> 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]
>>> 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
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>>>
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>>>
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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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