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

Sat Oct 8 16:00:48 PDT 2016

There are two routes through which the RNC could attempt to remove and replace Trump involuntarily.  

The first is through invoking the "otherwise" provision in current Rule 9.  As Jim Bopp's response illustrates, that will certainly trigger litigation from disaffected Republicans, at least.  But as Rob recognizes, a supermajority might be required to do that, as a practical and political matter, it would probably requires a super-majority of the RNC to do this.

If a supermajority is required in any event under option 1, a 2/3rd majority of the RNC can also suspend the rules, then re-write Rule 9 to make it clear that removal is permissible in the current circumstance.  That would eliminate the kind of challenges, based on the party rules, that option 1 inevitably entails.  At that point, disaffected actors would be relegated to perhaps some kind of constitutional, substantive due process claim, which seems to me to have no plausibility of succeeding.

I did not suggest the RNC has to amend Rule 9.  I was only responding to others who wondered about the process for doing so.

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Kelner, Robert
Sent: Saturday, October 08, 2016 6:49 PM
To: jboppjr
Cc: lawcourt-l at legal.umass.edu; law-election at uci.edu; Levinson, Sanford V
Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)

Jim, can you provide a source for your proposition that the power of removal "cannot be implied but must be explicit"?  There is no such requirement.

Actually, the RNC rules include no prohibition on removal. Rule 9 in turn acknowledges (quite reasonably) that a vacancy may occur for many reasons. This is the purpose of the "or otherwise" catch all.

None of this is surprising. If, for example, the party's nominee committed a serious crime after the convention, is there any real doubt that the party could remove him or her?

In this case, I expect the advocates of removal to argue that Trump is manifestly not a viable candidate and has engaged in gross malfeasance as a candidate. There is nothing in the rules of the party that would require a higher bar for removal.

Rob

Sent from my iPhone

On Oct 8, 2016, at 6:32 PM, jboppjr <jboppjr at aol.com<mailto:jboppjr at aol.com>> wrote:

Rob is clearly wrong here. The power to fill a vacancy, which Rule 9 addresses, is completely different from the power to create a vacancy by removing a nominee. This power cannot be implied but must be explicit. There is no rule permitting removal. Jim

Sent via the Samsung Galaxy Note(r) 4, an AT&T 4G LTE smartphone

-------- Original message --------
From: "Kelner, Robert" <rkelner at cov.com<mailto:rkelner at cov.com>>
Date: 10/8/16 5:45 PM (GMT-05:00)
To: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.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)

Rule 9 does not need to be amended. Rule 9, as currently framed, includes clear wiggle room. It includes a catch all for a vacancy created "otherwise" than in a classic death or withdrawal scenario. The RNC rules are filled with such negotiated weasel words to allow flexibility to deal with unanticipated scenarios. If a strong majority of RNC members (probably a super majority would be needed as a practical matter) desired to replace Trump, they could do so, as a matter of party rules. The tougher issue is then the revision of state ballots, which would likely be possible in some but not all states. As many have noted, even without administrative action or judicial relief (though I think judicial relief is plausible in some states), once the Republican Party has a new nominee, there are various avenues to ensure that electors translate ballot votes for the former party nominee into electoral college votes for the actual nominee. It wouldn't be easy by any stretch. But suggestions that it is not possible as a matter of law are simply wrong.

Rob

Sent from my iPhone

On Oct 8, 2016, at 4:44 PM, Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com><mailto: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

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On Oct 8, 2016, at 4:32 PM, Pildes, Rick <pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu><mailto: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<mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:law-election at uci.edu><mailto: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<mailto:jswan at thehill.com><mailto: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<mailto:pildesr at mercury.law.nyu.edu><mailto: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<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<mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com>; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto:law-election at uci.edu><mailto: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<mailto: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]
Sent: Saturday, October 08, 2016 10:17 AM
To: Schultz, David A.
Cc: Pildes, Rick; JBoppjr at aol.com<mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com>; lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu>; law-election at uci.edu<mailto: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><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><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<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of JBoppjr at aol.com<mailto: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><mailto:dschultz at hamline.edu>; law-election at uci.edu<mailto:law-election at uci.edu><mailto:law-election at uci.edu>; lawcourt-l at legal.umass.edu<mailto: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><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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