Donald Trump is in major damage control mode. He’s released a video apologizing for his shockingly vulgar comments that came to light in leaked audio released from a 2005 Access Hollywood interview in which he bragged about using his celebrity status to come up to women and “grab ’em by the p—y.” Speaker of the House Paul Ryan, who was scheduled to appear at a Trump rally, cancelled saying he was “sickened” by the video. Additionally, there are rumors about GOP leaders convening some kind of emergency meeting. And, CNN’s Senior White House Correspondent Jim Acosta even said, “I think this could be it,” when asked if the tape could kill Trump’s run for the White House.
So, with exactly a month to go until Election Day, what happens if Trump is forced to drop out of the Presidential race? Or if the GOP forces him out? It’s a bit complicated, so let’s explain what we know about the process.
Republican National Committee Rule # 9 outlines what happens when there is a Republican nomination vacancy due to “death, declination or otherwise.”
It basically says that there are two ways for the Republicans to re-nominate a candidate if Trump drops out. 1) They could reconvene at another convention and have all of the 2,472 delegates vote, or 2) the 168-member committee could decide with each member getting a portion of votes based on the population of the state they represent. Number 2 seems like a more likely scenario.
Seems simple? Not so fast. Since we are exactly a month away from the election, there is one major problem: The ballot deadlines have passed in nearly every state. For example, in West Virginia, the law says a candidate must withdraw “no later than eighty-four days before the general election.” With thirty days to go, we are obviously too late. Each state has different rules about what happens if there is a vacancy. So, even if the Republicans pick a new nominee, it is likely Trump’s name will appear on the ballot in most states.
However, as you remember from U.S. History, the fun doesn’t end there. The 12th Amendment says that after the election, “the Electors shall meet in their respective states and vote by ballot for President and Vice-President.” The GOP electors (Electoral College) will meet on December 19th, 2016 to cast their presidential vote. That’s where the real action to replace Trump would likely happen.
Professor Edward Foley, who is the director of election law at Moritz School of Law at Ohio State, talked to LawNewz.com about what could happen if the GOP decided to go with another Presidential candidate (for example, Mike Pence):
If Trump publicly withdraws, it makes it easier for GOP leadership to orchestrate a public plan in which to explain to the electorate that by voting for “Trump/Pence” on the ballot they are actually voting for Pence/Kasich (or Pence/_______, whoever they pick for the new V-P slot). It would be legally equivalent to the circumstance in which Trump had died, and the GOP needed to announce a replacement even though it was too late to reprint the ballots.
But Trump doesn’t need to withdraw for the GOP leadership to pursue a comparable public plan whereby they repudiate him. The RNC could attempt to invoke its own rules to declare that, over Trump’s objections, he’s no longer the party’s nominee. If the RNC were to take that route, it might put the GOP on stronger legal footing under various state laws concerning the party’s slate of presidential electors.
But from the perspective of the U.S. Constitution, and the Electoral Count Act of 1877, which are the two key pieces of federal law, it is not essential that the RNC take that kind of formal step under its own party rules. If there is a well-publicized plan in which McConnell, Ryan, and other party leaders all announce that they want the GOP presidential electors to vote for Pence for president, not Trump, and that’s what the GOP presidential electors do on December 19—in those states in which the GOP presidential electors received more popular votes that Clinton electors—then Pence (or whoever the GOP picks) is the choice that gets sent by those electors from those states to Congress for opening and counting on January 6.
It obviously matters whether or not the GOP can reach 270 Electoral College votes for Pence (or whomever they pick) under this strategy. If not—in other words, if Clinton wins enough states so that her electors have 270 or more—what the GOP electors do is irrelevant. Clinton is declared presidential-elect, assuming Congress confirms so on January 6.
However, Professor Foley brings up a problem: what if someone tried to challenge the plan by attempting to submit to Congress a second set of Electoral College votes? Then, he says, what happens next would become even more convoluted, and might ultimately depend on which party controls the Senate–and could even result in NO President-elect come January 20th, 2017.
Also, several states have laws which bind electors to a previous pledge they made to cast their Electoral College votes for Trump. What happens then?
“As for the three states that say a presidential elector who votes differently than the person that elector had promised to vote for is deemed to have resigned, those laws don’t work when the state’s entire slate of electors ‘disobeys’; The laws in those three states say the ‘disobedient’ elector is to be replaced by the other electors. But if all the electors ‘disobey,’ there would be no electors to replace them, so it can’t happen,” Richard Winger, the editor of Ballot Access News, responded in a blog post.
So if your head is spinning, you are not alone. This would be a confusing process and likely cause a legal mess.
“High stakes litigation would also ensue — with little, if any precedents to guide the litigants and judges — in order to determine how members of the Electoral College should behave,” said Ian Millhaser, a Constitutional law expert at the Center for American Progress.
The bottom line, though: All this is still possible, and could happen. With this election, who knows?
LawNewz.com has reached out to more election law experts, if we get any more clarification/or information on what would happen if Trump drops out, we reserve the right to update this article.
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