[EL] [Lawcourt-l] Rumors on replacing Trump (redux)
Kelner, Robert
rkelner at cov.com
Sun Oct 9 11:09:25 PDT 2016
The RNC’s “general management” authority presumably includes the authority to do anything not prohibited by the rules or the organic documents of the party. The rules circumscribe in many ways the powers of the RNC members, but nothing in the rules circumscribes the power to replace a failed nominee. Not only that, but by expressly including the “or otherwise” catch all, Rule 9 contemplates that a vacancy to be filled by the members may occur in any manner of undefined ways. And of course, as previously noted, the RNC members enjoy the ultimate authority under Rule 12 to amend the rules (including Rule 9) whenever needed, so long as they can muster a supermajority of the RNC’s members, not the delegates to the past convention.
Best,
Rob
Robert Kelner
Covington & Burling LLP
One CityCenter, 850 Tenth Street, NW
Washington, DC 20001-4956
T +1 202 662 5503 | rkelner at cov.com
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From: jboppjr at aol.com [mailto:jboppjr at aol.com]
Sent: Sunday, October 09, 2016 1:26 PM
To: Kelner, Robert
Cc: sean at impactpolicymanagement.com; lawcourt-l at legal.umass.edu; law-election at uci.edu; SLevinson at law.utexas.edu
Subject: Re: [EL] [Lawcourt-l] Rumors on replacing Trump (redux)
Since when does the "general management" authority include the power to remove the nominee chosen by another body, the national convention If such a general phrase included such plenary power, there would really be no need for any of the other Rules at all. General management would just mean that the RNC can do whatever it wants. That is just not the case. Jim Bopp
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________________________________
On Saturday, October 8, 2016 Kelner, Robert <rkelner at cov.com<mailto:rkelner at cov.com>> wrote:
Jim, that exaggerates the role of the prior national convention, at least in this context. Under the RNC's rules, as adopted at the last convention, until the next convention "the Republican National Committee shall have the general management of the Republican Party, based upon the rules adopted by the Republican National Convention."
Nothing in those rules in any way suggests that the RNC lacks the authority to replace a nominee, and Rule 9 explicitly states that the RNC may fill a vacancy that arises in any way (the "or otherwise" catch all).
Moreover, apart from the plenary power of the RNC's members to "have the general management of the Republican Party" until the next convention, Rule 9 itself explicitly states that the RNC "may," but need not, convene a new convention to address a vacancy, which again highlights the extent of the RNC's unilateral authority over the process until the next regularly scheduled convention.
Finally, picking up on the thread earlier today, under Rule 12, a supermajority of the RNC members may amend the rules, including Rule 9, at any time, which underscores the wide discretion enjoyed by the members, wholly independent of the Republican National Convention.
Rob
Sent from my iPhone
On Oct 8, 2016, at 7:37 PM, "JBoppjr at aol.com<mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com>"<mailto:JBoppjr at aol.com%3e%22?> <JBoppjr at aol.com<mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com<mailto:JBoppjr at aol.com?>>> wrote:
The other important aspect of this is that the RNC is subordinate to the National Convention. As a subordinate body, it has no inherent power over the actions of the superior body. The subordinate body only has the power given to it by the superior body. Jim Bopp
In a message dated 10/8/2016 7:11:07 P.M. Eastern Daylight Time, jboppjr at aol.com<mailto:jboppjr at aol.com><mailto:jboppjr at aol.com<mailto:jboppjr at aol.com?>> writes:
Republican candidates for President are nominated by the delegates at our national convention, not by the RNC. Thus, the RNC has no inherent power over the actions of a distinctly different body. The reason the RNC has the power to fill a vacancy is because the delegates at the National Convention conferred that power on the RNC by Rule 9. That Rule does not give the RNC the power to remove the candidate.
And it is completely irrelevant how compelling it would be for the RNC to exercise a non-existent power, unless you are a fan of Obama's "I have a phone and a pen" view of the extent of his power. Jim Bopp
Sent via the Samsung Galaxy Note® 4, an AT&T 4G LTE smartphone
-------- Original message --------
From: "Kelner, Robert" <rkelner at cov.com<mailto:rkelner at cov.com><mailto:rkelner at cov.com>><mailto:rkelner at cov.com%3e%3e?>;
Date: 10/8/16 6:48 PM (GMT-05:00)
To: jboppjr <jboppjr at aol.com<mailto:jboppjr at aol.com><mailto:jboppjr at aol.com>><mailto:jboppjr at aol.com%3e%3e?>;
Cc: Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com>><mailto:sean at impactpolicymanagement.com%3e%3e?>;, lawcourt-l at legal.umass.edu<mailto: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:election at uci.edu><mailto: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><mailto:SLevinson at law.utexas.edu>><mailto:SLevinson at law.utexas.edu%3e%3e?>;
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><mailto:jboppjr at aol.com><mailto:jboppjr at aol.com<mailto:jboppjr at aol.com%3e%3cmailto: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® 4, an AT&T 4G LTE smartphone
-------- Original message --------
From: "Kelner, Robert" <rkelner at cov.com<mailto:rkelner at cov.com><mailto:rkelner at cov.com><mailto:rkelner at cov.com<mailto:rkelner at cov.com%3e%3cmailto: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><mailto:sean at impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com%3e%3cmailto:sean at impactpolicymanagement.com?>>>
Cc: lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>, law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu?>>, "Levinson, Sanford V" <SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu><mailto:SLevinson at law.utexas.edu><mailto:SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu%3e%3cmailto: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><mailto:sean at impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com%3e%3cmailto:sean at impactpolicymanagement.com%3e%3cmailto: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<mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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<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:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto: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><mailto:jswan at thehill.com><mailto:jswan at thehill.com<mailto:jswan at thehill.com%3e%3cmailto:jswan at thehill.com%3e%3cmailto: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><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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<mailto:SLevinson at law.utexas.edu%3cmailto: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><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com<mailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com?>>; lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto: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><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com<mailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com?>>; lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto: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><mailto:dschultz at hamline.edu><mailto:dschultz at hamline.edu<mailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu%3e%3cmailto: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><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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%3e%3cmailto:law-election-bounces at department-lists.uci.edu%3e%3cmailto: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%3cmailto: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><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com<mailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com%3e%3cmailto: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><mailto:dschultz at hamline.edu><mailto:dschultz at hamline.edu<mailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu?>>; lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto: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><mailto:dschultz at hamline.edu><mailto:dschultz at hamline.edu<mailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu%3e%3cmailto: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
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Twitter: @ProfDSchultz
My latest book: Presidential Swing States: Why Only Ten Matter
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Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
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651.523.2858<tel:651.523.2858> (voice)
651.523.3170<tel: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
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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><mailto:jboppjr at aol.com><mailto:jboppjr at aol.com<mailto:jboppjr at aol.com%3e%3cmailto: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® 4, an AT&T 4G LTE smartphone
-------- Original message --------
From: "Kelner, Robert" <rkelner at cov.com<mailto:rkelner at cov.com><mailto:rkelner at cov.com><mailto:rkelner at cov.com<mailto:rkelner at cov.com%3e%3cmailto: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><mailto:sean at impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com%3e%3cmailto:sean at impactpolicymanagement.com?>>>
Cc: lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>, law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu?>>, "Levinson, Sanford V" <SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu><mailto:SLevinson at law.utexas.edu><mailto:SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu%3e%3cmailto: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><mailto:sean at impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com%3e%3cmailto:sean at impactpolicymanagement.com%3e%3cmailto: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<mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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<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:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto: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><mailto:jswan at thehill.com><mailto:jswan at thehill.com<mailto:jswan at thehill.com%3e%3cmailto:jswan at thehill.com%3e%3cmailto: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><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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<mailto:SLevinson at law.utexas.edu%3cmailto: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><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com<mailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com?>>; lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto: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><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com<mailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com?>>; lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto: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><mailto:dschultz at hamline.edu><mailto:dschultz at hamline.edu<mailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu%3e%3cmailto: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><mailto:pildesr at mercury.law.nyu.edu><mailto:pildesr at mercury.law.nyu.edu<mailto:pildesr at mercury.law.nyu.edu%3e%3cmailto:pildesr at mercury.law.nyu.edu%3e%3cmailto: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%3e%3cmailto:law-election-bounces at department-lists.uci.edu%3e%3cmailto: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%3cmailto: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><mailto:JBoppjr at aol.com><mailto:JBoppjr at aol.com<mailto:JBoppjr at aol.com%3e%3cmailto:JBoppjr at aol.com%3e%3cmailto: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><mailto:dschultz at hamline.edu><mailto:dschultz at hamline.edu<mailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu?>>; law-election at uci.edu<mailto:election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu%3e%3cmailto:law-election at uci.edu?>>; lawcourt-l at legal.umass.edu<mailto:l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu><mailto:lawcourt-l at legal.umass.edu<mailto:lawcourt-l at legal.umass.edu%3e%3cmailto:lawcourt-l at legal.umass.edu%3e%3cmailto: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><mailto:dschultz at hamline.edu><mailto:dschultz at hamline.edu<mailto:dschultz at hamline.edu%3e%3cmailto:dschultz at hamline.edu%3e%3cmailto: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
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Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
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http://davidschultz.efoliomn.com/
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http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
My latest book: Presidential Swing States: Why Only Ten Matter
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