[EL] [Lawcourt-l] Rumors on replacing Trump (redux)
JBoppjr at aol.com
JBoppjr at aol.com
Sun Oct 9 12:44:14 PDT 2016
Rob, your expansive interpretation of the "general management" power would
even make the most wildeyed judicial activist blush.
Please note the Rule you referred to says ""the Republican National
Committee shall have the general management of the Republican Party, based upon
the rules adopted by the Republican National Convention." So it is not the
all-encompassing grant of all power which you assume it to be but is limited
by the Rules adopted by the national convention. And not even you can find
a rule giving the RNC explicit authority to remove a nominee.
And this is all I have to say about it. Jim Bopp
In a message dated 10/9/2016 2:09:35 P.M. Eastern Daylight Time,
rkelner at cov.com writes:
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
Sent from AOL Mobile Mail
____________________________________
On Saturday, October 8, 2016 Kelner, Robert <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>"
<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> 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>>
Date: 10/8/16 6:48 PM (GMT-05:00)
To: jboppjr <jboppjr at aol.com<mailto:jboppjr at aol.com>>
Cc: Sean Parnell
<sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>,
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)
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>> 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>>
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>>
Cc:
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"
<SLevinson at law.utexas.edu<mailto: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
><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
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:pil
desr 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><mailto:lawcourt-l at legal.umass.edu>;
law-election at uci.edu<mailto: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><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-trum
p-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><mailt
o: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><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><mailto:lawcourt-l
@legal.umass.edu>;
law-election at uci.edu<mailto: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><mailto:p
ildesr 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><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><mailto:lawcourt-l at lega
l.umass.edu>; law-election at uc
i.edu<mailto: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><mailto:dschultz at hamline.e
du>> 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><mailt
o: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<mailto:law-election-bounces at depart
ment-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>
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>;
law-election at uci.edu<mailto: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@
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><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.
--
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<tel:651.523.2858> (voice)
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Twitter: @ProfDSchultz
My latest book: Presidential Swing States: Why Only Ten Matter
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-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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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>> 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>>
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>>
Cc:
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"
<SLevinson at law.utexas.edu<mailto: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 impactpolicymanage
ment.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
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:pil
desr 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><mailto:lawcourt-l at legal.umass.edu>;
law-election at uci.edu<mailto: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><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-trum
p-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><mailt
o: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><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><mailto:lawcourt-l
@legal.umass.edu>;
law-election at uci.edu<mailto: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><mailto:p
ildesr 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><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><mailto:lawcourt-l at lega
l.umass.edu>;
law-election at uci.edu<mailto: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><mailto:dschultz at hamline.e
du>> 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><mailt
o: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<mailto:law-election-bounces at depart
ment-lists.uci.edu>] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr at aol.co
m><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><mailto:dschultz at hamline.edu>;
law-election at uci.edu<mailto: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@
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><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.
--
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<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-Stat
es-Why-Only-Ten-Matter
FacultyRow SuperProfessor, 2012, 2013, 2014
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http://department-lists.uci.edu/mailman/listinfo/law-election
--
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<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
FacultyRow SuperProfessor, 2012, 2013, 2014
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Jonathan Swan
National Political Reporter
The Hill
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